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OF  CALIFORNIA 

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Dr.  ^ or don  Wat kins 


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ci\ 


ESSAYS   ON   GOVERNMENT 


BY 

A?  LAWRENCE  LOWELL 


BOSTON  AND  NEW  YORK 
HOUGHTON,  MIFFLIN  AND  COMPANY 

(2Tbf  IftiUcrsibe  pres'0,  <JTnmbrib0e 

iSfyO 


je;?i3 


Copyright,  1889, 
Bl  ABBOTT  LAWRENCE  LOWELL. 

All  rights  reserved. 


The  Riverside  Press,  Cambridge,  Mass.,U.  S.  A. 
Electrotyped  and  Printed  by  H.  O.  Houghton  &  Co. 


CONTENTS. 


PAGE 

Introduction 1 

I.   Cabinet   Responsibility  and  the   Constitution    20 
II.  Democracy  and  the  Constitution  ...        60 

III.  The  Responsibilities  of  American  Lawyers      118 

IV.  The  Theory  of  the  Social  Compact  .        .  136 
V.   The  Limits  of  Sovereignty      ....       189 

Index 223 


ESSAYS  OE"  GOVERNMENT. 


INTRODUCTION. 

Jusqu'a  present,  je  n'en  ai  guere  trouve"  qu'un  [principe  po- 
litique], si  simple  qu'il  semblera  pu^ril  et  que  j'ose  a  peine 
l'enoncer.  ...  II  consiste  tout  entier  dans  cette  remarque  qu'une 
soctete  humaine,  surtout  une  society  uioderne,  est  une  chose  vaste 
et  compliquee.  —  Taine,  Les  Origines  de  la  France  contempo- 
raine :  La  Revolution,  vol.  ii.,  Preface. 

Any  one  who  attempts  to  study  a  carpet 
loom,  or  even  an  ordinary  steam  engine,  when 
at  rest,  will  find  its  mechanism  hard  to  under- 
stand. He  may  examine  the  several  parts  ; 
note  their  size  and  shape,  and  the  materials  of 
which  they  are  made ;  but  unless  he  watches 
them  in  motion  he  will  not  easily  appreciate 
their  bearing  upon  one  another,  or  their  func- 
tions in  the  working  of  the  machine.  The 
same  principle  applies  to  the  study  of  politics, 
for  the  real  mechanism  of  a  government  can 
be  understood  only  by  examining  it  in  action. 
It  has,  indeed,  been  far  too  common  to  study 
the  constitutions  of  various  countries  statically, 
if  I  may  use  the  term ;  and  this  has  led  to  a 


2  ESSAYS  ON  GOVERNMENT. 

habit  of  describing  the  nature,  composition, 
and  powers  of  the  different  factors  in  the  gov- 
ernment without  seeking  to  know  the  actual 
scope  of  their  several  operations,  or  the  extent 
of  their  control  over  one  another.  Such  a 
method  of  proceeding  is  very  much  like  ex- 
amining the  parts  of  a  steam  engine  separately, 
and  describing  the  piston,  for  example,  as  a 
bar  of  steel  so  many  feet  long  and  so  many 
inches  in  diameter,  without  referring  to  the 
fact  that  it  works  only  in  and  out  of  the  cylin- 
der and  owes  its  motion  to  the  head  of  steam. 
It  was  the  study  of  the  British  government  in 
its  actual  working  which  led  Bagehot  to  remark 
that  while  the  nature  and  legal  attributes  of 
king,  lords,  and  commons  had  been  correctly 
described,  their  functions  were  entirely  miscon- 
ceived. He  saw  that  the  crown,  while  still 
possessing  in  the  eye  of  the  law  all  the  powers 
formerly  ascribed  to  it,  had  long  ceased  to  use 
them  at  pleasure,  and,  like  the  piston  of  the 
steam  engine,  was  guided  and  controlled  by 
other  forces. 

A  knowledge  of  the  actual  working  of  a 
political  system  is  essential,  therefore,  in  order 
that  its  real  mechanism  may  be  understood. 
This  is  the  first  step  in  the  study  of  a  govern- 
ment; but  it  is  only  the  first  step,  because  a 
political  system  is  not  a  mere  machine  which 


INTRODUCTION.  3 

can  be  constructed  on  any  desired  plan,  and  the 
parts  of  which  can  be  adjusted  according  to  the 
fancy  of  the  designer.  It  is  far  more  than  this. 
It  is  an  organism  ;  and  in  order  to  appreciate 
its  possible  forms  and  the  causes  of  its  develop- 
ment, stability,  or  decay,  it  is  necessary  to  in- 
vestigate the  laws  of  its  organic  life.  The  my- 
thology of  the  ancient  world  is  crowded  with 
strange  beings  of  all  conceivable  forms,  —  half 
bird,  half  beast ;  half  man,  half  fish  or  brute. 
These  creatures  were  made  by  putting  together 
in  one  body  the  members  of  different  animals, 
and  were  supposed  in  this  way  to  combine  their 
various  advantages.  A  being  was  thus  imag- 
ined which  could  run  like  a  horse  and  fly  like  a 
bird,  or  use  its  hands  like  a  man  ;  but  a  zool- 
ogist would  have  no  hesitation  in  pronouncing 
all  such  creatures  impossible,  because  the  pres- 
ence in  their  bodies  of  one  set  of  organs  would 
prevent  the  existence,  or  at  least  the  effective 
service,  of  the  others. 

Perhaps  this  can  be  made  clearer  by  an  illus- 
tration from  astronomy,  a  science  which,  in  the 
present  condition  of  our  knowledge,  is  far  more 
exact.  Here  again  the  ancients  were  not  afraid 
to  take  liberties  with  nature,  for  when  a  hero 
died  they  were  in  the  habit  of  creating  in  his 
honor  an  appropriate  star;  but  an  astronomer 
would  tell  you  that  such  conduct  would  infal- 


4  ESSAYS  ON  GOVERNMENT. 

libly  disturb  the  peace  of  the  sky.  He  would 
tell  you  that  a  new  planet  would  attract,  and 
be  attracted  by,  all  the  older  ones,  and  would 
modify  the  course  of  every  one  of  them.  He 
might  even  be  able  to  calculate  the  perturba- 
tions that  would  result  in  the  celestial  orbits, 
but  in  any  case  he  would  tell  you  that  the  path 
of  every  star  would  change  until  the  universe 
adjusted  itself  to  a  new  equilibrium  of  forces. 
All  this  is  no  less  true  of  the  life  of  political 
bodies  than  it  is  of  the  march  of  the  stars,  be- 
cause a  government  is  an  organism  whose  vari- 
ous parts  act  and  react  upon  one  another ;  and 
it  follows  that  a  change  in  any  one  of  them 
will  cause  changes  more  or  less  great  in  all 
the  others  until  the  system  settles  down  with 
a  new  balance  of  forces.  In  order  to  under- 
stand the  organic  laws  of  a  political  system,  it 
is  necessary  to  examine  it  as  a  whole,  and  seek 
to  discover  not  only  the  true  functions  of  each 
part,  but  also  its  influence  upon  every  other 
part,  and  its  relation  to  the  equilibrium  of  the 
complete  organism. 

It  is  in  the  light  of  this  conception  that  I 
have  tried  to  study  the  government  of  the 
United  States  in  the  first  three  of  these  essays. 
I  have,  however,  confined  my  attention  mainly 
to  a  single  point  of  view,  that  of  the  limitation 
of  legislative  power  and  the  protection  of  pri' 


INTRODUCTION.  5 

vate  rights ;  and  even  from  this  point  of  view 
I  have  not  attempted  anything  like  a  systematic 
treatise,  but  have  ventured  only  to  touch  upon 
some  of  the  more  prominent  features  of  the 
subject.  These  essays  were,  in  fact,  written  at 
different  times,  and  their  method  is  therefore 
fragmentary  ;  but  as  I  have  thought  it  better 
to  leave  them  in  their  original  form,  it  may 
not  be  improper  to  say  a  few  words  to  explain 
them,  and  to  point  out  their  connection  with 
each  other. 

In  the  first  essay  the  English  and  American 
forms  of  government  are  compared,  for  the 
purpose  of  showing  that  their  natures  are  radi- 
cally different ;  and  an  attempt  is  made  to  prove 
that  cabinet  responsibility,  that  central  feature 
of  the  English  system,  is  not  in  harmony  with 
our  institutions,  and  could  not  be  introduced  into 
the  United  States  without  destroying  the  entire 
fabric  of  the  constitution.  It  would  not  have 
been  out  of  place  to  discuss  in  this  connection 
the  suggestion  so  often  made  here,  of  giving  to 
cabinet  officers  seats  in  Congress  without  votes. 
But  the  question  of  their  having  votes  or  not  is 
really  quite  entirely  immaterial,  so  far  as  the 
general  effect  on  the  form  of  our  government  is 
concerned,  because  ministerial  responsibility  can 
exist  as  completely  when  the  cabinet  officers 
have  no  votes  as  when  they  are  for  all  purposes 


6  ESSAYS    ON  GOVERNMENT. 

members  of  the  legislature ;  and  evidence  of 
this  may  be  found  in  several  of  the  parliamen- 
tary governments  on  the  continent  of  Europe. 
It  would  be  possible,  I  think,  to  show  that  this 
plan  would  either  result  in  a  full-fledged  re- 
sponsible ministry,  or  produce  little  or  no  ef- 
fect, whether  for  good  or  for  evil,  and  result  in 
nothing  at  all.  The  advocates  of  such  a  change 
claim  for  it  all  the  advantages  without  any  of 
the  perils  of  cabinet  government,  whereas  it 
is  clear  that  none  of  the  benefits  they  expect 
from  it  —  such  as  a  close  cooperation  of  the 
legislature  and  the  executive ;  a  recognized 
leadership  in  Congress  ;  a  centralization  of 
political  responsibility  in  the  hands  of  a  few 
men,  or  rather  of  one  group  of  men,  whose 
motions  the  nation  can  easily  follow,  and  upon 
whom  it  can  pass  judgment  at  a  stroke,  —  none 
of  these  results  could  be  obtained  unless  the 
cabinet  officers  in  taking  their  seats  became 
the  responsible  leaders  of  Congress  in  the  strict 
parliamentary  sense.  A  discussion  of  this  ques- 
tion would,  however,  throw  little  additional 
light  upon  the  nature  of  our  political  system ; 
and  I  speak  of  it  here  because  the  essay  has 
been  criticised  on  the  ground  that  I  had  mis- 
understood this  suggestion,  and  wasted  powder 
in  attacking  a  proposal  which  had  never  been 
made,  at  least  never  in  a  practical  form. 


INTRODUCTION.  7 

In  the  second  essay  the  English  and  Ameri- 
can forms  of  government  are  further  compared, 
but  in  a  somewhat  different  manner.  The 
effect  that  each  of  them  is  adapted  to  produce 
in  a  democratic  country  upon  the  limitation  of 
popular  power  and  the  protection  of  private 
rights  is  considered,  and  from  this  point  of  view 
an  inquiry  is  made  into  the  structure  of  our 
government  and  the  laws  of  its  organic  life. 

The  third 'essay  was  originally  written  for  a 
law  review,  and  treats  of  the  position  and  func- 
tions of  the  legal  profession  in  our  political 
system. 

In  the  last  two  essays  the  limitation  of  polit- 
ical power  is  considered  from  a  philosophical 
standpoint.  The  first  of  these  deals  only  with 
the  theory  of  the  social  compact ;  but  this  is 
almost  equivalent  to  a  sketch  of  the  history  of 
modern  political  philosophy  to  the  end  of  the 
last  century,  because  until  that  time  all  modern 
speculation  upon  government  found  its  expres- 
sion in  some  form  of  this  theory,  except  among 
those  publicists,  ever  decreasing  in  numbers 
and  influence,  who  advocated  the  doctrine  of 
the  divine  right  of  kings.  It  is  therefore  a 
very  significant  fact  that  the  writers  upon  this 
theory  are  divided  into  two  schools,  one  of 
which  used  it  to  prove  that  the  power  of  the 
state  must  be  absolute,  while  the  other  drew 


8  ESSAYS  ON  GOVERNMENT. 

from  it  the  conclusion  that  the  authority  of  gov- 
ernment is  necessarily  limited  by  the  natural 
rights  of  individuals ;  and  it  is  no  less  impor- 
tant to  observe  that  these  two  classes  of  opinion 
do  not  correspond  with  any  bias  in  favor  of 
monarchy  or  of  popular  government. 

The  final  essay,  upon  the  abstract  doctrine 
of  the  limitation  of  sovereignty,  is  intended 
chiefly  for  students  of  jurisprudence. 

Throughout  these  essays  I  have  tried  to  pre- 
serve a  scientific  spirit,  and  to  study  different 
political  systems,  without  weighing  their  respec- 
tive advantages,  or  expressing  a  preference  for 
any  of  them.  For  this  reason  I  have  avoided 
all  discussion  of  the  merits  of  that  belief  in  the 
sacredness  of  personal  liberty  and  private  rights 
on  which  the  American  constitutions  are  in 
large  measure  based,  but  in  the  Introduction  it 
does  not  seem  improper  to  assume  a  different 
tone,  and  to  speak  freely  of  the  principles  on 
which  I  conceive  that  sacredness  to  rest.  In 
considering  the  matter,  however,  it  is  impor- 
tant to  distinguish  between  the  real  basis  of 
this  polity  and  the  form  which  it  assumes  in  the 
mind  of  the  people  ;  for  these,  like  moral  pre- 
cepts and  the  ethical  principles  from  which  the 
precepts  are  drawn,  are  very  different  things. 
It  is  the  duty  of  the  philosopher,  and  in  fact  of 
every  person,  to  reason  out  the  grounds  of  his 


INTRODUCTION.  9 

system  of  morals  ;  but,  once  established,  the 
morality  ceases  to  be  a  matter  of  intellectual 
speculation,  and  becomes  in  the  human  mind  an 
end  in  itself.  This  is,  indeed,  the  form  which 
it  ought  to  take  ;  for  like  a  mathematical  prop- 
osition, which  is  first  proved  and  then  assumed 
without  further  question,  a  moral  precept,  after 
being  proved  correct,  ought  to  be  assumed  and 
acted  upon.  A  man  or  a  nation  that  went 
back  to  first  principles,  in  order  to  decide  each 
question  as  it  arose,  would  be  very  much  in  the 
position  of  an  engineer  who  felt  obliged  to 
go  through  the  Pythagorean  proposition  every 
time  he  laid  a  timber  of  a  bridge.  Morality 
is  of  little  or  no  practical  value  until  it  has 
reached  the  stage  of  conviction ;  and  the  real 
intellectual  and  moral  wealth,  the  working  capi- 
tal of  men  or  nations,  consists  of  the  accumu- 
lation of  principles  which  they  have  proved 
and  no  longer  question.  In  this  manner  the 
sacredness  of  individual  rights  is  treated  in  the 
American  constitutions  as  something  absolute 
and  final,  but  to  the  philosopher  it  must  be 
proved. 

Discarding  the  exploded  doctrine  of  the  nat- 
ural rights  of  man,  and  assuming  on  the  con- 
trary that  the  system  of  government  which 
most  promotes  the  moral  and  material  welfare 
of  the  community  is  the  best,  let  us  examine 


10  ESSAYS   ON  GOVERNMENT. 

the  principles  of  utility  on  which  the  protection 
of  personal  liberty  and  private  right  depends. 
The  chief  of  these  is  the  encouragement  of 
individual  enterprise  and  exertion.  When  De 
Tocqueville  visited  America  he  was  struck  by 
the  fact  that  the  people,  although  intolerant  of 
eccentricity  in  habits,  manners,  and  opinions, 
admired  enterprise  in  commercial  matters ;  and 
while  the  first  of  these  peculiarities  is  by  no 
means  so  marked  as  it  was  at  that  time,  the 
second  has  left  its  stamp  on  the  form  of  the 
government.  The  Americans  have  always  be- 
lieved that  by  individual  enterprise  great 
schemes  are  started  and  great  inventions  made, 
which  increase  vastly  the  wealth  of  the  whole 
community  and  result  in  immense  benefits  to 
both  rich  and  poor.  The  patent  laws  spring 
from  this  conviction,  and  they  have  been  a 
most  important  factor  in  the  prosperity  of  the 
country.  Now,  for  effective  development  of 
enterprise,  three  things  are  requisite,  —  absence 
of  restraint  to  the  greatest  extent  that  is  possi- 
ble ;  confidence  on  the  part  of  the  individual 
that  he  will  be  able  to  enjoy  unmolested  the 
fruits  of  his  labor;  and  the  possibility  of  calcu- 
lating the  result  of  a  course  of  conduct  so  that 
the  projector  of  an  enterprise  can  foresee  the 
consequences  of  his  actions,  and  lay  his  plans 
accordingly. 


IN  TROD  UCT1  ON.  11 

Tbe  first  of  these  requisites  is  evident  to  any- 
one who  reflects  upon  the  subject,  for  it  is  pro- 
verbial that  genius  cannot  work  in  harness,  and 
that  unless  it  is  free  to  make  its  experiments 
and  develop  its  conceptions  in  its  own  way  it 
will  never  produce  anything  at  all.  A  bureau- 
cratic system  where  everything  is  regulated  by 
the  state  is  certain  to  be  a  stationary  system  ; 
and  if  enterprises  had  to  be  submitted  to  the 
public  authorities  for  approval  before  they  were 
put  in  operation,  there  would  soon  cease  to  be 
any  great  enterprises  at  all.  Nor  is  it  the  pro- 
jector alone  who  must  be  free  from  restraint, 
because  every  scheme  or  invention  which  adds 
materially  to  the  prosperity  and  welfare  of  the 
community  involves  to  a  greater  or  less  extent 
a  modification  of  the  conduct  and  habits  of  a 
large  number  of  people ;  and  unless  these  are 
free  to  adapt  themselves  to  the  new  conditions, 
the  experiment  will  meet  with  obstacles  at 
every  turn,  and  will  be  brought  to  a  standstill 
before  it  has  developed  headway  enough  to  be 
fairly  tried.  It  is  probable  that  the  difference 
between  the  stagnant  and  the  progressive 
periods  of  the  world's  history  consists  less  in 
the  absence  of  men  of  genius  able  and  willing 
to  make  discoveries,  than  in  the  reluctance  of 
the  community  so  to  change  its  course  of  life 
as  to   obtain    the   benefits   which   a   discovery 


12  ASSAYS  ON  GOVERNMENT. 

would  bring  within  its  grasp.  In  a  flexible 
state  of  society,  where  people  are  ready  to  take 
advantage  of  useful  innovations,  thousands  of 
eyes  are  all  the  time  watching  for  new  oppor- 
tunities to  make  money ;  are  trying  to  find 
something  which  the  public  wants,  something 
which  will  contribute  to  the  comfort  or  welfare 
of  the  community. 

The  second  requisite  I  have  mentioned  is  a 
confidence  on  the  part  of  the  individual  that 
he  will  be  able  to  enjoy  unmolested  the  fruits 
of  his  labor.  This  supplies  the  chief  stimulus 
to  exertion  ;  nor  can  the  energy  which  produces 
great  results  be  sustained  by  the  prospect  of 
moderate  gains  alone.  It  is  not  uncommon  to 
hear  the  remark  that  some  person  who  has 
made  a  considerable  fortune  by  his  talents  has 
got  enough,  and  has  reaped  all  the  profit  he  is 
fairly  entitled  to  ;  but  such  an  opinion  shows 
an  entire  misapprehension  of  the  subject.  It 
is  the  fact  that  one  man  in  a  thousand  wins  an 
enormous  prize  which  induces  others  to  struggle 
on  in  neglect  and  poverty ;  and  there  can  be  no 
doubt  that  the  talent  of  the  American  people  for 
invention  is  due  in  large  part  to  the  few  great 
fortunes  which  have  been  made  under  the  pro- 
tection of  our  patent  laws.  The  prospect  of 
large  returns  is  necessary,  moreover,  to  induce 
capital  to  embark  in   hazardous   ventures,  and 


INTRODUCTION.  13 

the  great  sums  of  money  occasionally  amassed 
are  by  no  means  too  much  to  pay  for  the  thought, 
the  labor,  the  anxiety,  and  the  risk  involved,  or 
for  the  result  produced.  It  has  been  truly  said 
that  the  millions  which  Vanderbilt  made  were 
a  cheap  price  to  pay  for  the  railroad  facilities 
which  he  gave  to  the  city  of  New  York  ;  and  the 
like  may  be  said  of  Arkwright's  spinning-jenny, 
and  of  many  inventions  in  more  recent  times. 

The  third  requisite  for  the  development  of 
individual  enterprise  which  I  have  named  is 
the  possibility  of  calculating  the  result  of  a 
course  of  conduct  so  that  a  man  can  foresee  the 
consequences  of  his  acts,  and  lay  his  plans  ac- 
cordingly. The  late  Professor  Benjamin  Peirce, 
in  a  discourse  on  the  conflict  between  science 
and  religion,  remarked  that  if  God,  instead  of 
ruling  the  world  by  fixed  laws,  constantly  inter- 
fered with  the  course  of  nature,  there  would  be 
"no  continuity,  no  possible  means  of  predicting 
one  event  from  another,  no  science,"  no  useful 
arts.  Without  fixed  laws  of  nature,  man  would 
never  have  emerged  from  the  state  of  barbarism. 
If  the  flight  of  an  arrow  were  not  governed  by 
the  inflexible  law  of  gravity,  the  savage  would 
never  have  learned  to  use  the  bow;  and  if  fire 
had  not  been  invariably  destructive,  he  would 
never  have  learned  to  control  it  and  make  it- 
serve  his  purposes.     If,  in  short,  the  material 


14  ESSAYS  ON   GOVERNMENT. 

world  had  not  been  governed  by  fixed  laws, 
man  would  never  have  acquired  that  power  of 
adapting  means  to  ends  which  is  the  very  sub- 
stance of  civilization.  This  principle  applies 
as  well  to  the  social  as  to  the  material  world, 
and  the  power  to  calculate  upon  the  actions  of 
our  fellow-men  is  as  essential  to  the  progress 
of  society  as  the  ability  to  rely  upon  the  con- 
stancy of  natural  forces.  Now  I  have  seen  it 
suggested  somewhere,  I  think,  that  amid  the 
complicated  relations  of  modern  life,  the  chief 
means  of  determining  the  future  actions  of  men 
is  furnished  by  contract.  If  it  were  not  for  a 
general  confidence  that  people  will  carry  out 
the  agreements  they  have  made,  great  enter- 
prises would  be  impossible,  and  even  the  most 
ordinary  business  of  every  day  would  cease.  A 
society,  indeed,  which  had  outgrown  the  rigid 
laws  of  status,  and  yet  was  absolutely  without 
contract,  would  be  in  much  the  same  condition 
as  a  world  without  friction,  where  no  movement 
would  be  possible.  It  is  by  means  of  contract 
that  society  has  been  enabled  to  attain  its 
present  state  of  industrial  and  commercial 
prosperity ;  and  any  serious  weakening  of  the 
bonds  of  contract,  or  in  fact  any  general  dis- 
trust in  the  strength  of  those  bonds,  would  not 
only  prevent  any  further  progress,  but  would 
soon  cause  the  social  fabric  to  decay.     A  confi- 


INTRODUCTION.  15 

dence  that  the  obligation  of  contracts  will  not 
be  violated,  together  with  a  belief  in  the  per- 
manence of  vested  rights,  being  a  necessary 
condition  of  the  ability  to  calculate  upon  the 
future  conduct  of  men,  is  essential  to  the  exist- 
ence of  individual  enterprise  and  to  the  pros- 
perity of  the  community. 

We  have  so  far  considered  the  protection  of 
personal  freedom  and  the  encouragement  of  in- 
dividual energy  only  from  the  side  of  material 
welfare ;  but  the  moral  aspect  of  the  matter  is 
no  less  important.  If  we  compare  the  paternal 
system  of  government  with  a  social  organiza- 
tion in  which  the  success  of  each  man  depends 
entirely  upon  his  own  exertions,  we  cannot  fail 
to  see  that  the  latter  fosters  the  self-reliance 
and  sense  of  personal  responsibility  which  are 
the  main  factors  in  developing  a  strong  and 
healthy  manhood,  while  the  former  has  a  mani- 
fest tendency  to  weaken  these  qualities,  and  to 
sap  the  vital  energies  of  the  nation.  Paternal 
government  derives  its  very  name  from  the 
fact  that  it  attempts  to  treat  the  citizens  as 
children,  and  keep  them  forever  in  leading- 
strings  ;  and  however  well  suited  such  a  system 
may  be  to  an  infant  or  backward  civilization, 
it  is  utterly  incapable  of  producing  a  really 
high  development  of  character  in  the  race. 

The  Americans  do  not  look  on  these  matters 


16  ESSAYS  ON  GOVERNMENT. 

from  a  purely  dogmatic  point  of  view.  They 
do  not  believe  in  the  inherent  right  of  any  man 
to  bring  up  his  children  in  ignorance ;  nor  do 
they  allow  any  one  to  suffer  to  the  uttermost 
the  consequences  of  his  misfortunes.  On  the 
contrary,  they  fit  the  citizen  to  enter  on  his 
career  by  giving  him  an  education.  They  fur- 
nish him  in  this  way  with  the  means  of  accom- 
plishing as  much  as  he  can  ;  and  if  he  fall,  they 
prevent  his  being  ground  down  beyond  hope  of 
recovery.  In  this  last  matter  they  have  gone 
in  some  of  the  States  too  far,  no  doubt ;  so  far 
as  to  make  the  collection  of  debts  uncertain. 
But  in  spite  of  injudicious  legislation  on  this 
and  some  other  subjects,  they  have  not  forgot- 
ten the  object  of  encouraging  personal  enter- 
prise ;  and  their  institutions  as  a  whole  are 
perhaps  as  perfectly  adapted  to  further  this 
object  as  any  mere  institutions  can  be.  Of 
course  all  civilization  of  European  origin  is 
mainly  based  on  the  same  principle ;  but  the 
patern;il  conception  of  government  is. every- 
where growing  very  much,  for  reasons  described 
in  the  second  of  these  essays,  and  at  the  present 
moment  there  is  a  strong  tendency  to  substitute 
state  control  for  individual  exertion.  There 
is  no  fear  of  complete  socialism  anywhere  at 
present,  nor  would  it  endure  if  it  were  estab- 
lished ;  but  steps  in  that  direction  have  already 


INTRODUCTION.  17 

been  taken,  and  they  are  likely  to  be  even 
more  rapid  in  the  near  future  than  they  have 
been  in  the  past.  These  all  entail  in  some 
measure  the  evils  of  socialism,  for  they  hamper 
personal  energy  and  encourage  people  to  look 
to  the  government  for  aid,  and  thus  enfeeble 
the  spirit  of  self-reliance  and  the  sense  of  re- 
sponsibility which  are  the  source  of  all  pros- 
perity and  all  moral  worth.  The  state  regula- 
tion of  labor  and  wealth  proposed  by  the  social- 
ists would,  in  fact,  be  far  more  discouraging  to 
enterprise  than  the  turbulence  and  oppression 
of  the  democracy  of  Athens  in  the  days  of  her 
decline.  The  late  Professor  Bluntschli  showed 
his  keen  appreciation  of  the  real  nature  of  the 
aspirations  of  these  men  when  he  said  that 
their  Utopia  was  a  world  reduced  to  the  condi- 
tion of  a  universal  house  of  correction  at  hard 
labor.  There  being  in  such  a  state  of  society 
no  reward  for  energy,  each  person  would  do  the 
smallest  amount  of  work  that  would  satisfy 
the  public  authorities ;  and  the  socialist  writers 
themselves  really  admit  the  truth  of  this  fact 
by  allowing  to  the  workman,  in  all  their  more 
recent  schemes,  a  certain  amount  of  private 
property  to  be  earned  by  his  own  efforts. 

In  considering  this  subject  it  is  important  to 
distinguish  between  voluntary  and  forced  co- 
operation.    The   former  is  no  discouragement 


18  ESSAYS   ON  GOVERNMENT. 

to  enterprise,  but,  on  the  contrary,  a  striking 
manifestation  of  it,  and  an  admirable  thing 
so  far  as  it  succeeds.  Enterprise  lias  indeed 
been  immensely  helped  in  the  United  States 
by  that  class  of  cooperation  which  takes  the 
form  of  corporations.1  But  any  universal  co- 
operation must  remain  an  impossibility  so  long 
as  men  are  actuated  in  great  part  by  selfish 
motives.  Society  is  a  collection  of  human 
beings,  and  its  structure  must  be  based  on  hu- 
man nature.  All  attempts,  therefore,  to  frame 
an  ideal  commonwealth  which  do  not  take  ac- 
count of  the  faults  and  frailties  of  mankind 
are  doomed  to  be  failures.  The  growth  in  the 
community  of  an  inductive  tone  of  mind  which 
studies  actual  facts  will,  it  may  be  hoped, 
bring  in  time  more  light  to  bear  on  social 
problems ;  but  in  the  mean  while  we  are  ex- 
posed to  experiments-  in  legislation  which  may 
do  incalculable  injury,  and  any  nation  may  well 
congratulate  itself  whose  institutions  hinder 
in  some  degree  movements  of  this  character. 
When  mankind  has  become  perfect,  and  we  are 
all  stirred  by  single,  high,  and  generous  aims, 
then  the  system  which  the  socialist  yearns  for 
will  be   possible.      Then   the    millennium  will 

1  Some  of  the  more  gigantic  of  these  bodies  have  used  their 
power  oppressively,  and  this  is  unfortunately  a  danger  which  is 
inscp;irable  from  all  co<  peralion  on  a  very  large  scale. 


INTRODUCTION.  19 

come,  when  there  will  be  no  more  private  prop- 
erty and  all  men  will  work  together  for  the 
common  good.  Then  the  whole  creation  will 
live  in  peace,  and  men  will  cease  to  kill  animals 
for  food ;  but  universal  unselfishness  is  as  re- 
mote as  vegetarianism,  and  as  yet  there  are  no 
signs  of  the  advent  of  either.  Socialism,  to 
be  tolerable,  must  at  least  eliminate  selfishness 
from  the  rulers  of  the  state.  Better  a  socialism 
administered  by  an  intelligent  autocrat,  who 
has  no  personal  interest  in  the  regulations  he 
decrees,  than  one  conducted  by  an  unbridled 
democracy.  Far  better  a  Bismarck  than  a 
Jacobin  Convention. 

We  are  placed  to-day  between  individualism 
and  paternal  government,  which  deals  with  men 
as  rigid  masses ;  and  to  accept  the  latter  would 
be  a  step  backward  from  contract  toward 
status,  not  an  advance  in  the  direction  which 
the  world  has  followed  hitherto.  Respect  for 
the  individual  man  is  one  of  the  chief  dif- 
ferences between  modern  Europe  and  the  an- 
cient world,  between  the  progressive  West 
and  the  stagnant  East.  Sympathy  with  indi- 
vidual suffering,  and  a  conviction  of  the  impor- 
tance of  the  individual  soul,  are  the  main- 
springs of  our  civilization.  They  are  the  very 
essence  of  Christian  it  v. 


I. 


CABINET    RESPONSIBILITY    AND    THE    CONSTI- 
TUTION. 

"He  that  goeth  about  to  persuade  a  multitude,  that  they  are  not 
so  well  governed  as  they  ought  to  be,  shall  never  want  attentive 
and  favorable  hearers  ;  becaHse  they  know  the  manifold  defects 
whereunto  every  kind  of  regiment  is  subject,  but  the  secret  lets 
and  difficulties,  which  in  public  proceedings  are  innumerable  and 
inevitable,  they  have  not  ordinarily  the  judgment  to  consider. 
And  because  such  as  openly  reprove  supposed  disorders  of  state 
are  taken  for  principal  friends  to  the  common  benefit  of  all,  and 
for  men  that  carry  singular  freedom  of  mind;  under  this  fair  and 
plausible  colour  whatsoever  they  utter  passeth  for  good  and  current. 
.  .  .  Whereas  on  the  other  side,  if  we  maintain  things  that  are 
established,  we  have  not  only  to  strive  with  a  number  of  heavy 
prejudices  deeply  rooted  in  the  hearts  of  men,  who  think  that 
herein  we  serve  the  time,  .  .  .  but  also  to  hear  such  exceptions 
as  minds  so  averted  beforehand  usually  take  against  that  which 
they  are  loth  should  be  poured  into  them."  —  Hooker's  Ecclesias- 
tical Polity,  book  i.,  chap.  i. 

It  is  only  a  few  years  since  the  people  of  this 
country  and  of  England  each  assumed  as  an 
axiom  that  their  own  form  of  government  was 
the  most  perfect  that  human  ingenuity  could 
devise  ;  while  the  political  writers  of  each 
nation  received  the  same  doctrine  very  much 
like  a  proposition  in  gpometry,  —  a  thing  to  be 


CABINET  RESPONSIBILITY.  21 

proved,  it  is  true,  but  a  matter  of  which  there 
could  be  no  doubt,  and  which  needed  only  a 
formal  demonstration  to  be  readily  accepted  by 
every  one.  All  this  is  so  recent  that  it  is  not  a 
little  surprising,  to-day,  to  hear  criticisms  upon 
the  form  of  their  own  governments  by  natives 
of  most  of  the  free  countries  of  Europe  and 
America.  The  sign  is  encouraging,  because 
the  complaints  do  not  come  from  persons  who 
wish  to  change  the  basis  of  political  power, 
making  it  more  or  less  popular,  but  arise  from 
a  conviction  that  the  government  in  its  actual 
form  does  not  work  as  well  as  it  should. 
The  most  common  grievance  is  that  the  leg- 
islature is  unable  to  accomplish  the  work  it 
ought  to  do.  We  hear  suggestions  from  Eng- 
land that  the  rules  of  the  houses  of  Parlia- 
ment might  be  changed  to  advantage  ;  from 
France  and  from  Canada,  that  the  system  of  a 
responsible  ministry  is  the  cause  of  most  of 
their  misfortunes  ;  while  for  this  country  the 
same  system  of  a  responsible  ministry  is  recom- 
mended as  a  panacea  for  all  our  ills.  Now 
government  by  a  responsible  ministry  has  many 
unquestionable  advantages.  It  has  a  great  ten- 
dency to  interest  and  instruct  the  people  ;  it 
conduces  to  a  thorough  public  discussion  of  pro- 
posed legislation  ;  it  turns  a  flood  of  light  upon 
every  corner  of  the  administration  ;  and  if  the 


22  ESSAYS   ON   GOVERNMENT. 

object  of  government  is  to  divide  the  people 
into  two  political  parties,  and  to  give  rapid  and 
unlimited  effect  to  the  opinions  of  the  majority, 
no  better  political  system  has  ever,  perhaps, 
been  suggested,  —  provided  that  the  people 
themselves  have  no  deep-rooted  prejudices, 
founded  on  religion,  on  race,  or  on  historical 
association,  to  impede  their  progress. 

But  in  the  United  States  the  object  of  gov- 
ernment is  looked  upon  in  a  very  different  light 
from  this.  It  is  here  considered  of  the  first 
importance  to  protect  the  individual,  to  pre- 
vent the  majority  from  oppressing  the  minor- 
ity, and,  except  within  certain  definite  limits, 
to  give  effect  to  the  wishes  of  the  people  only 
after  such  solemn  formalities  have  been  com- 
plied with  as  to  make  it  clear  that  the  popular 
feeling  is  not  caused  by  temporary  excitement, 
but  is  the  result  of  a  mature  and  lasting  opin- 
ion. This  is  done,  in  the  words  of  the  Consti- 
tution of  Massachusetts,  "  to  the  end  it  may  be 
a  government  of  laws,  and  not  of  men,"  or,  as 
we  should  put  it  to-day,  a  government  by  prin- 
ciples, and  not  by  popular  impulse.  The  result 
is  a  complicated  and  unwieldy  form  of  govern- 
ment; a  division  of  powers  into  legislative,  exec- 
utive, and  judicial ;  a  subdivision  of  the  legisla- 
tive power  between  two  houses  and  a  president 
or  governor  ;  and  in  most  of  the  States  a  distri- 


CABINET  RESPONSIBILITY.  23 

bution  of  the  executive  power  among  a  large 
number  of  officers  who  are  virtually  independ- 
ent of  each  other.  These  divisions  of  power  are 
accompanied  by  cross-divisions  separating  the 
powers  given  to  the  federal  government  from 
those  reserved  to  the  several  States  ;  but  the 
feature  of  the  American  system  which  shows 
in  the  most  striking  manner  the  attachment  of 
our  people  to  the  fundamental  principles  of  law 
is  to  be  found  in  the  power  of  the  courts  to  dis- 
regard an  act  of  the  legislature  when  it  violates 
those  rights  which  have  been  protected  by  the 
Constitution.  The  notion  that  legislative  power 
could  never  infringe  private  rights  was,  indeed, 
carried  so  far  at  one  time  that  certain  judges 
assumed  an  authority  to  hold  a  statute  invalid 
if  it  was  repugnant  to  the  common  principles 
of  justice  and  civil  liberty,  even  if  it  did  not 
conflict  with  any  express  provision  of  the  Con- 
stitution.1 It  is  needless  to  say  that  such  a  doc- 
trine is  not  law,  but  the  fact  that  it  could  be 
proclaimed  from  the  bench  is  significant  as  an 
indication  of  popular  feeling. 

It  is  not  my  intention,  in  this  essay,  to  dis- 
cuss the  relative  merits  of  the  English  and 
American  forms  of  government,  but  merely  to 
attempt  to  show  that  a  responsible  ministry 
cannot  be  grafted  into  our  institutions  without 

1  See  page  169. 


24  ESSAYS  ON  GOVERNMENT. 

entirely  changing  their  nature,  and  destroying 
those  features  of  our  government  which  we 
have  been  in  the  habit  of  contemplating  with 
the  greatest  pride. 

The  essential  characteristic  of  a  parliamen- 
tary government  consists  in  the  fact  that  the 
cabinet  —  a  body  comprising  all  those  members 
of  the  executive  department  on  whom  the  pol- 
icy of  the  administration  depends  —  can  remain 
in  office  only  so  long  as  it  receives  the  support 
of  the  legislature.  The  members  of  the  cabi- 
net have  seats  in  the  legislature,  and  they  are 
expected  to  superintend  its  work,  and  to  pre- 
pare such  bills  as  they  think  ought  to  be 
enacted.  But  it  is  not  for  the  performance  of 
these  duties  alone  that  they  are  responsible. 
They  are  liable  to  be  turned  out  of  office  if  the 
legislature  disapprove  of  their  conduct  in  mat- 
ters purely  administrative.  Mr.  Gladstone's 
cabinet,  for  example,  was  no  less  responsible 
to  the  House  of  Commons  for  sending  Lord 
Wolseley  up  the  Nile  than  it  was  for  proposing 
an  increase  of  the  tax  on  beer,  and  a  vote  cen- 
suring its  policy  in  the  Soudan  campaign  would 
have  caused  its  resignation  no  less  certainly 
than  a  defeat  on  the  budget.  The  legislature 
is  made  familiar  with  the  policy  of  the  ministry 
in  legislative  matters  by  the  bills  it  introduces, 
but   it   can    also   obtain   as   much   information 


CABINET  RESPONSIBILITY.  25 

about  matters  of  administration  as  it  desires  by 
means  of  questions  addressed  to  the  ministers. 
It  is  evident,  therefore,  that  the  supervision 
which  the  legislature  exercises  over  the  details 
of  administration  is  limited  only  by  the  temper 
of  the  legislature  itself,  or,  in  fact,  by  the  intel- 
ligence, energy,  and  strength  of  the  opposition. 
The  legislature  has  complete  power  of  control 
over  all  matters,  both  legislative  and  executive, 
but  so  long  as  the  cabinet  retains  the  support 
of  the  legislature,  all  the  powers  of  government 
are  virtually  entrusted  to  its  care.  In  the 
words  of  Bagehot,  the  cabinet  "  is  a  board  of 
control  chosen  by  the  legislature,  out  of  persons 
whom  it  trusts  and  knows,  to  rule  the  nation  ;  " 
and  this,  in  the  opinion  of  John  Stuart  Mill,  is 
the  most  perfect  form  of  government. 

Let  us  suppose  such  a  system  to  be  intro- 
duced into  the  United  States,  and  let  us  try  to 
discover  what  effect  it  would  produce  upon  our 
institutions.  I  shall,  however,  confine  the  in- 
quiry to  the  federal  government,  for  the  results 
in  the  States  would  be  the  same. 

The  first  matter  to  be  considered  is  the  posi- 
tion the  President  would  occupy  if  an  amend- 
ment to  the  Constitution  were  to  provide  that 
the  executive  officers  should  be  responsible  to 
Congress  ;  and  let  us  suppose,  to  begin  with, 
that  the  President  himself   is  jnven  a  seat  in 


26  ESSAYS   ON  GOVERNMENT. 

one  of  the  houses.  If,  in  such  a  case,  the 
President  were  a  man  of  sufficient  ability  and 
force  of  character,  he  might  become  the  leader 
of  Congress,  and  he  would  then  occupy  a  posi- 
tion essentially  the  same  as  that  of  the  premier 
in  England.  He  would  be  his  own  prime  min- 
ister. This  was  the  situation  of  M.  Thiers 
when  President  of  the  French  Republic,  for  he 
refused  to  allow  his  advisers  to  become  a  min- 
istry in  the  parliamentary  sense,  and  held  him- 
self personally  responsible  for  the  acts  of  his 
government.  But  no  matter  how  great  a  leader 
the  President  might  be,  such  a  state  of  things 
could  last  only  so  long  as  Congress  continued 
to  be  of  his  own  party.  The  moment  a  Con- 
gress of  the  opposite  party  was  elected,  he 
would  be  obliged  either  to  resign,  or  to  give  up 
all  exercise  of  power,  and  surrender  the  govern- 
ment into  the  hands  of  some  one  who  could  ob- 
tain the  support  of  Congress  ;  because,  by  the 
very  definition  of  a  responsible  ministry,  no  one 
can  continue  at  the  head  of  the  administration 
whose  policy  has  been  condemned  by  the  leg- 
islature. Experience  shows  us  how  rarely  it 
would  happen  that  a  President  elected  by  the 
people  would  be  capable  of  leading  Congress. 
If  he  were  not  able  to  do  this,  the  real  leader 
of  Congress  and  head  of  the  government  would 
be  some  other  member  of  the  administration  ; 


CABINET  RESPONSIBILITY.  27 

and  in  that  case  the  President  would  have  no 
more  actual  power  than  if  he  had  no  seat  in 
Congress,  and  were  not  a  part  of  the  ministry 
at  all. 

But,  in  fact,  no  one  proposes  that  the  Presi- 
dent shall  be  a  responsible  prime  minister,  or 
have  a  seat  in  Congress.  The  advocates  of  a 
parliamentary  government  go  no  further  than 
to  suggest  that  the  advisers  of  the  President 
shall  sit  in  Congress,  and  that  they  alone  shall 
be  responsible  to  it  for  their  actions.  Under 
such  a  system  the  President  would  remain  in 
office  for  the  four  years  of  his  term  in  any 
event,  while  the  cabinet  officers  would  retain 
their  places  only  so  long  as  Congress  wasy  will- 
ing to  allow  them  to  do  so.  The  President 
would  then  be  obliged  to  select  his  cabinet 
from  among  the  leaders  of  Congress,  for  other- 
wise the  administration  would  be  without 
strength,  and  in  danger  of  being  upset  when- 
ever the  men  who  really  commanded  Congress 
should  conclude  that  they  wanted  cabinet  posi- 
tions for  themselves.  But  it  is  evident  that 
cabinet  officers,  who  knew  that  they  could  not 
be  dismissed  without  the  consent  of  Congress, 
and  who  were  at  the  same  time  the  leaders  of 
Congress  and  able  to  control  its  actions,  would 
find  it  very  easy  to  carry  out  their  own  policy 
of  administration  without  much  regard  to  the 


28  ESSAYS    ON  GOVERNMENT. 

wishes  of  the  President.  They  would  be  called 
upon,  moreover,  to  explain  and  defend  before 
Congress  the  policy  of  the  government,  and 
they  could  not  do  this  unless  that  policy  were 
really  their  own.  They  would  make  but  a 
sorry  piece  of  work  in  defending  the  acts  of  the 
President  unless  they  really  approved  of  those 
acts,  and  were  willing  to  assume  complete  re- 
sponsibility for  them.  Tliey  clearly  could  not 
shield  themselves  by  pleading  the  orders  of  the 
President,  because  his  orders  would  not  be 
binding  on  Congress,  and  such  a  defence  would 
not  prevent  Congress  from  turning  the  cabinet 
out,  and  insisting  on  a  ministry  which  would 
fulfill  its  wishes.  Of  course  the  responsibility 
of  the  cabinet  to  Congress  would  not  make  the 
President  a  figurehead  at  once.  George  III. 
exercised  an  immense  influence  over  the  House 
of  Commons  long  after  the  principle  of  a  re- 
sponsible ministry  had  become  a  part  of  the 
British  Constitution,  and  in  a  less  degree  we 
should  see  the  same  thing  here.  The  tradition 
of  the  President's  authority  would  probably 
enable  him  to  influence  politics  for  a  long  time ; 
but  as  Congress  became  more  and  more  con- 
scious of  its  power,  it  would  control  more  and 
more  completely  the  acts  of  the  administration. 
It  would  gradually  force  the  cabinet  officers  to 
be  strictly  responsible  to    itself,  and  it  would 


CABINET  RESPONSIBILITY.  29 

finally  concentrate  all  powers,  both  legislative 
and  executive,  in  its  own  hands.  So  long  as 
Congress  and  the  President  were  of  the  same 
political  party  the  process  would  probably  go 
on  slowly ;  but  it  is  clear  that  if  a  Congress  of 
a  party  hostile  to  the  President  were  elected,  he 
would  rapidly  lose  all  control  of  the  administra- 
tion, which  would  pass  into  the  hands  of  his 
political  opponents.  Mr.  Bagehot,  while  dis- 
cussing the  separation  of  the  legislative  and 
executive  powers  in  this  country,  and  the  exclu- 
sion of  our  cabinet  officers  from  seats  in  Con- 
gress, remarks,  "  And,  to  the  effectual  main- 
tenance of  such  a  separation,  the  exclusion  of 
the  President's  ministers  from  the  legislature 
is  essential.  If  they  are  not  excluded  they  be- 
come the  executive  ;  they  eclipse  the  President 
himself.  A  legislative  chamber  is  greedy  and 
covetous ;  it  acquires  as  much,  it  concedes  as 
little  as  possible.  The  passions  of  its  mem- 
bers are  its  rulers ;  the  law-making  faculty,  the 
most  comprehensive  of  the  imperial  faculties,  is 
its  instrument ;  it  will  take  the  administration, 
if  it  can  take  it.  Tried  by  their  own  aims, 
the  founders  of  the  United  States  were  wise  in 
excluding  the  ministers  from  Congress."  In 
those  countries  in  which  a  parliamentary  gov- 
ernment has  been  introduced,  the  nominal  head 
of  the  administration,  whether  hereditary  as  in 


30  ASSAYS    ON  GOVERNMENT. 

England,  or  elected  as  in  France,  has  gradually 
lost  his  political  power,  and  this  must,  in  the 
nature  of  things,  always  take  place.  Germany 
may  seem  to  present  a  striking  exception  to 
this  rule,  but  there  the  cabinet  is  not  in  fact 
responsible,  for  by  means  of  the  vast  personal 
force  of  Prince  Bismarck  the  emperor  has  been 
enabled  to  keep  a  strong  hold  on  the  reins  of 
government ;  but  no  one  can  suppose  that  Bis- 
marck himself  would  have  been  able  to  treat 
the  Congress  of  the  United  States  as  he  has 
treated  the  German  Reichstag,  and  even  in 
Germany  he  has  done  no  more  than  put  off  the 
day  he  so  much  dreads,  because  it  will  not  be 
possible  for  his  successors  to  follow  in  his  foot- 
steps in  this  matter. 

After  considering  the  position  the  President 
would  occupy  if  we  had  a  responsible  ministry, 
one  is  naturally  led  to  inquire  what  changes 
such  a  system  of  government  would  produce 
upon  Congress.  That  body  is  now  composed  of 
two  branches,  each  of  which  has  not  only  a  con- 
stitutional right  to  refuse  to  enact  laws  proposed 
by  the  other,  but  has  no  hesitation  in  actually 
exercising  its  authority.  Mr.  Bagehot,  a  strong 
advocate  of  parliamentary  government,  consid- 
ers such  a  state  of  things  exceedingly  pernicious  ; 
while,  on  the  other  hand,  the  publicists  of  the 
last  century,  and  most  Americans  at  the  present 


CABINET  RESPONSIBILITY.  31 

day  assert  that  it  is  very  important,  if  not  ab- 
solutely necessary,  as  a  check  upon  popular  im- 
pulse. Let  us  consider  whether  the  existence 
of  two  really  independent  houses  of  Congress 
is  possible  in  a  parliamentary  government.  The 
cabinet  is  to  be  responsible.  Responsible  to 
whom  ?  To  the  two  houses  of  Congress.  This 
is  all  very  well  so  long  as  the  houses  are  of  one 
mind ;  but  what  will  happen  when  they  dis- 
agree ?  Suppose  that  the  House  of  Represen- 
tatives should  continue  to  support  the  cabinet 
while  the  Senate  opposed  it,  and  that  the  cab- 
inet refused  to  resign.  The  Senate  would  then 
have  but  two  courses  open  to  it:  either  to  ham- 
per the  policy  of  the  administration  in  every 
possible  way,  and  attempt  to  force  the  hands 
of  the  cabinet  and  the  House,  or  to  submit; 
and  if  it  should  submit,  it  would  fall  in  pres- 
tige, and  gradually  lose  all  voice  in  the  control 
of  the  administration.  When,  in  such  a  case, 
the  majorities  of  the  House  of  Representatives 
and  of  the  Senate  do  not  belong  to  radically 
different  parties,  a  compromise  may  be  ar- 
ranged, it  is  true  :  but  if  this  arrangement  is 
really  a  compromise,  and  not  a  virtual  surren- 
der on  the  part  of  one  of  the  houses,  the  cab- 
inet will  be  weak  and  its  policy  negative;  or  if 
it  happens  that  the  cabinet  is  vigorous  and 
composed  of  able  men,  it  will  play  off  each  of 


32  ESSAYS   ON  GOVERNMENT. 

the  houses  against  the  other,  and  be  in  reality 
responsible  to  neither  of  them.  A  ministry  can- 
not be  responsible  to  two  chambers.  In  the 
long  run  it  must  depend  upon  the  support  of 
the  stronger  one  alone,  and  disregard  the  action 
of  the  weaker.  And  this  becomes  more  clear 
when  we  consider  that  one  of  the  most  impor- 
tant duties  of  a  responsible  ministry  is  to  ex- 
plain and  defend  its  policy  in  the  chambers, 
because  the  ministry  cannot  really  fight  its  bat- 
tles in  both  chambers,  for  the  debates  that  take 
place  in  one  cannot  be  repeated  in  the  other, 
nor  will  a  part  of  the  debates  take  place  in  one 
and  a  part  in  the  other.  All  the  important 
discussions  will  tend  to  occur  in  the  chamber 
which  shows  the  most  power,  and  the  chamber 
in  which  the  debates  take  place  will  have  the 
most  attraction  for  men  of  talent  and  ambition  ; 
and  so  the  stronger  chamber  will  grow  stronger, 
and  the  weaker  will  become  weaker,  until  all 
authority  is  centred  in  the  former.  Mr.  Bage- 
hot's  description  of  the  position  of  the  House  of 
Lords  must  in  time  apply  to  the  second  cham- 
ber in  any  country  where  the  more  powerful 
chamber  is  not  so  torn  by  factions  as  to  be 
unable  to  maintain  a  definite  policy  of  its  own. 
"  Since  the  Reform  Act,"  he  says,  "  the  House 
of  Lords  has  become  a  revising  and  suspend- 
ing House.     It  can  alter  Bills ;    it  can  reject 


CABINET  RESPONSIBILITY.  33 

Bills  on  which  the  House  of  Commons  is  not 
yet  thoroughly  in  earnest  —  upon  which  the 
nation  is  not  yet  determined.  Their  veto  is 
a  sort  of  hypothetical  veto." 

The  French  Senate  appears  to  be  an  excep- 
tion to  this  rule,  for  it  has  a  very  considerable 
amount  of  power,  and  at  times  it  has  not  been 
afraid  to  defeat  the  policy  of  the  Chamber  of 
Deputies.  The  most  extraordinary  example  of 
this  occurred  in  1883,  when  the  premier,  M. 
Duclerk,  resigned  because  he  could  not  ap- 
prove of  a  bill  for  the  expulsion  of  the  Orleans 
Princes,  which  was  supported  by  a  majority  of 
the  committee  of  the  Chamber  of  Deputies  and 
by  most  of  the  members  of  his  own  cabinet. 
M.  Fallieres  formed  a  ministry,  and  the  bill 
was  immediately  passed  by  the  Chamber  of 
Deputies  ;  two  weeks  later  it  was  defeated  in 
the  Senate,  and  M.  Fallieres  resigned.  M. 
Ferry  succeeded  him,  and  managed  to  deprive 
the  Princes  of  their  commands  in  the  army 
under  the  provisions  of  an  existing  statute; 
but  the  Chamber  of  Deputies  made  no  attempt 
at  that  time  to  insist  upon  its  policy  of  expul- 
sion. Thus  within  three  weeks  two  cabinets 
were  wrecked  by  the  same  bill :  the  first  by  the 
Chamber  of  Deputies  which  supported  the  bill, 
and  the  second  by  the  Senate  which  refused  to 
pass  it.     Now  this  was   possible  only  because 


34  ESSAYS   ON  GOVERNMENT. 

the  majority  of  the  Chamber  of  Deputies,  al- 
though agreed  upon  the  bill  in  question,  was 
not  sufficiently  united  to  be  really  in  earnest 
in  the  support  of  the  ministry.  The  French 
Chamber  is,  in  fact,  so  split  up  into  factions 
that  a  compact  majority  is  impossible,  and  a 
committee  system  unsuited  to  a  parliamentary 
government  tends  to  increase  the  difficult}', 
until  every  ministry  is  the  result  of  a  sort  of 
coalition.  The  Chamber  tolerates,  but  never 
supports,  the  ministers  ;  and  this  is  the  cause 
not  only  of  the  weakness  of  the  ministries  and 
their  uncertain  hold  of  office,  but  also  of  the 
power  which  the  Senate  has  been  able  to  retain.1 
In  a  parliamentary  government  the  power  of 
dissolving  the  legislature  is  almost  essential  to 
the  smooth  working  of  the  system,  because  a 
minister  who  feels  that  the  people  are  on  his 
side  when  he  loses  the  support  of  the  house 
cannot  be  made  amenable  to  the  latter.  The 
ministry  looks  to  the  house  for  support,  but  in 
order  that  the  system  may  work  well  they  must 
both  feel  that  their  policy  is  in  harmony  with 
the  will  of  their  constituents,  because  these  are 
the  final  judges  of  the  policy  of  the  government, 
and  an  election,  whether  it  takes  place  upon  a 

1  Since  this  essay  was  written  the  Senate  has  steadily  lost  power, 
until,  by  failing  to  take  a  decided  stand  of  any  kind  at  the  time  of 
President  Grevy's  fall,  it  committed  political  suicide. 


CABINET  RESPONSIBILITY.  35 

sudden  dissolution  or  at  the  expiration  of  a 
fixed  time,  is  an  appeal  to  their  judgment. 
From  this  point  of  view  it  is  evident  which, 
of  the  two  branches  of  Congress  would  over- 
shadow the  other  and  become  the  centre  of 
power.  Every  two  years,  according  to  the  Con- 
stitution, the  entire  House  of  Representatives  is 
elected,  and  there  assembles  at  Washington  a 
new  House  in  sympathy  with  the  opinions  of 
the  people  :  if,  therefore,  we  had  a  responsible 
ministry,  the  people,  in  electing  the  House, 
would  pass  judgment  biennially  upon  the  acts 
of  the  ministry.  But  only  one  third  of  the 
Senate  is  renewed  within  the  same  period,  so 
that  this  body  is  never  a  very  accurate  index 
of  the  opinions  of  its  constituents.  A  reelec- 
tion of  a  third  of  the  Senators  could  hardly  be 
looked  upon  as  a  verdict  upon  the  acts  of  a  re- 
sponsible ministry  ;  and  even  if  the  Cabinet 
were  given  power  to  dissolve  entirely  both 
branches  of  Congress,  the  two  houses  would  not 
stand  upon  an  equality,  because  the  election  of 
the  House  of  Representatives  would  indicate 
the  opinion  of  the  people,  while  the  new  Senate 
would  represent  only  the  States  ;  and  there  can 
be  no  question  that  the  will  of  the  people,  and 
not  that  of  the  States,  would  be  the  decisive 
matter.  The  Senate  represents  the  people  in- 
directly ;  but  while  the  House  represents  their 


36  ESSAYS  ON  GOVERNMENT. 

present  wishes,  the  Senate  may  be  said  to  rep- 
resent their  more  deep-rooted  and  lasting  opin- 
ions. It  is  partly  to  this  quality  that  the  Sen- 
ate owes  its  power  and  its  usefulness ;  but  in 
a  parliamentary  government  an  appeal  to  the 
people  means  an  appeal  to  the  present  opinion 
of  the  people,  for  it  can  mean  nothing  else. 
The  elections  to  the  House  of  Representatives 
would  be  the  answer  to  this  appeal,  and  it  is 
the  House  which  would  be  clothed  with  the 
power  of  the  people. 

I  shall  now  boldly  assume  that  the  reader  is 
convinced  of  the  truth  of  all  that  has  been  said, 
and  I  shall  lay  it  down  as  a  foundation  for  fur- 
ther discussion  that,  if  a  responsible  ministry 
were  introduced  into  our  government,  the  House 
of  Representatives  would  acquire  the  powers  of 
the  House  of  Commons  ;  that  the  Senate  would 
occupy  a  position  similar  to  that  of  the  House 
of  Lords ;  and  that  the  President  wrould  be  re- 
duced to  such  a  condition  that,  except  for  the 
absence  of  a  pedigree  and  of  crown  jewels,  he 
might  well  be  degraded  to  the  condition  of  a 
king.  I  wish  now  to  inquire  what  effect  such 
a  state  of  things  would  have  upon  the  relations 
of  the  state  and  federal  authorities.  In  dis- 
cussing the  government  of  the  United  States, 
Mr.  Bagehot  remarks  :  "  After  saying  that  the 
division    of    the    legislative    and    executive    in 


CABINET  RESPONSIBILITY.  37 

presidential  governments  weakens  the  legisla- 
tive power,  it  may  seem  a  contradiction  to  say 
that  it  also  weakens  the  executive  power.  But 
it  is  not  a  contradiction.  The  division  weakens 
the  whole  aggregate  force  of  government,  —  the 
entire  imperial  power ;  and  therefore  it  weak- 
ens both  its  halves."  The  converse  of  this  is 
also  true.  The  union  of  the  legislative  and  ex- 
ecutive departments  would  increase  the  aggre- 
gate force  of  the  federal  government,  —  would 
increase  its  power  to  accomplish  its  purposes, 
and  would  enable  it  with  much  greater  ease  to 
encroach  on  the  authority  of  the  States  if  it 
should  desire  to  do  so.  Now  it  is  almost  an 
axiom  in  political  science  that  the  powerful 
always  hunger  for  more  power,  and  that  the 
ability  of  one  body  to  encroach  upon  the  au- 
thority of  another  is  the  father  of  a  desire  to 
do  so.  But  this  is  not  all.  It  is  claimed  by 
those  who  advocate  a  parliamentary  govern- 
ment for  this  country  that  such  a  government 
would  increase  the  interest  of  the  people  in 
national  affairs ;  and  this  in  itself  is  a  very  good 
thing;  but  it  must  not  be  forgotten  that  a  con- 
centration of  popular  interest  means  a  concen- 
tration of  popular  power.  If  the  people  become 
excited  over  a  federal  issue  beyond  a  certain 
point;  if  they  learn  to  look  upon  it  as  a  matter 
of  paramount  importance,  they  will  endeavor  to 


38  ESSAYS  ON  GOVERNMENT. 

give  effect  to  their  opinions  with  all  the  power 
that  they  possess,  without  much  regard  for  the 
theoretical  rights  of  the  States.  We  saw  an 
example  of  this  at  the  time  of  the  civil  war. 
It  is  a  proof  of  the  strength  of  our  Constitu- 
tion that  the  war  did  not  produce  a  far  greater 
centralization  than  we  have  witnessed,  and  that 
the  system  has  so  nearly  recovered  its  equili- 
brium :  but  in  spite  of  its  strength  the  Consti- 
tution would  not  stand  many  strains  of  such 
violence.  Of  course  I  do  not  mean  to  assert 
that  under  a  responsible  ministry  the  popular 
excitement  would  at  all  compare  with  what 
it  was  at  the  time  of  the  civil  war ;  but  I  do 
mean  to  say  that  national  questions  would  con- 
stantly assume  an  importance  in  the  eyes  of 
the  people  which  would  entirely  overshadow 
local  interests,  and  that  a  responsible  ministry, 
armed  with  the  power  of  public  opinion,  would 
bring  to  bear  upon  the  States  a  steady  pressure 
which  they  would  be  unable  to  resist.  It  has 
been  said  that  the  United  States  is  still  in  its 
feudal  period,  and  to  a  certain  extent  the  meta- 
phor is  appropriate  ;  because  just  as  the  feudal 
barons  in  the  Middle  Ages  presented  points  of 
physical  resistance  to  the  centralizing  ambition 
of  the  king,  so  to-day  the  States  present  points 
of  moral  resistance  to  the  centralizing  tendency 
of  our  national  government.     They  form  centres 


CABINET  RESPONSIBILITY.  89 

for  the  organization  of  local  opinion,  and  rally- 
ing points  for  those  who  are  in  a  minority  on 
federal  questions.1 

1  It  is  also  to  be  remembered  that  the  smaller  the  community 
which  exercises  political  power,  the  larger  will  the  individual  be  in 
proportion  to  that  community.  A  member  of  a  small  community 
will  find  it  comparatively  easy,  therefore,  to  assert  his  rights,  and 
the  community  will  find  it  difficult  to  trample  upon  them. 

M.  Boutmy,  in  comparing  the  governments  of  France,  England, 
and  the  United  States,  imputes  the  absolutism  of  the  French  to  the 
absence  of  great  public  corporations.  His  remarks  are  so  much 
in  point  that  I  venture  to  quote  them  at  some  length  (Droit  Con- 
stitutwnnel,  page  239  et  seq.):  "En  France,  il  n'y  a  pas  depuis 
1789  d'autre  etre  collectif  anime  d'une  vie  puissante  que  la  nation, 
concue  dans  sa  totality  indivisible.  Au  sein  de  la  nation  il  n'y  a 
de  consistant  que  l'individu.  .  .  .  La  souverainete'  sera  theorique- 
ment  la  volonte  de  tous  les  citoyens,  et  pratiquement  elle  se  con- 
fondra  avec  la  volonte  de  la  majority  numerique.  ...  II  n'y  a  pas 
de  point  d'appui  en  dehors  de  la  majorite,  il  n'y  en  a  done  pas 
contre  elle  pour  une  resistance  ou  une  dissidence  qui  dure.  .  .  . 
On  a  vu  qu'en  France  liquation  politique  ne  comprend  que  deux 
termes:  l'individu  et  l'Etat,  un  infiniment  petit  et  un  intiniment 
grand.  .  .  .  L'egoisme  chdtif  de  chaque  citoyen  fait  seul  face  a 
l'interet  indivisible  et  superieur  de  la  nation.  .  .  .  Les  droits  de 
l'individu,  premier  theme  de  la  constitution,  source  reconnue  de 
tout  pouvoir  legitime,  palissent  trop  souvent  pendant  cette  seconde 
phase  et  s'effacent  devant  cette  ideal  usurpateur.  L'intemperance 
legislative  et  r^glementaire  du  Parlement  et  des  pouvoirs  publics, 
l'existence  et  l'activite  exageree  d'une  justice  achninistrative  oil 
l'Etat  figure  comme  juge  et  partie,  sont  les  deux  faits  qui  accusent 
le  plus  siirement  ce  penchant  ii  subordonner  et  ii  humilier  1'intertH 
ou  les  liberte's  privies,  et  a  fonder  le  despotisme  consciencieux  de 
l'interet  public.  L'Angleterre,  et,  dans  la  sphere  f^derale,  les 
Etats-Unis,  ont  moins  souffert  que  nous  du  premier  de  ces  maux; 
ils  ont  echappt5  au  second. 

"Ces  deux  pays  ont  du  en  effet  a  l'importance  et  au  prestige  des 
grandes  personnes  morales  qui  out  precede  et  cree  leurs  constitu- 
tions, de  ne  pas  connaitre  jusqu'a  present  cette  antithese  heurte'e 
de  l'Etat  et  de  l'individu,  cette  oscillation  sans  arret  intermediaire, 


40  ESSAYS  ON  GOVERNMENT. 

We  have  not  yet  considered  the  effect  of  a 
responsible  ministry  upon  the  most  vital  part 
of  our  government,  the  part  on  which  the  whole 
system  hinges,  and  that  is  the  authority  of  the 
courts.  Their  power  to  disregard  a  statute 
which  violates  the  provisions  of  the  Constitu- 
tion is  the  barrier  that  preserves  the  limits  of 
the  different  forces  in  the  government,  that  pre- 
vents gradual  and  unobserved  encroachments, 
and  makes  it  possible  to  maintain  a  system  of 
divided  sovereignty.  To  European  statesmen 
this  power  of  our  courts  is  a  standing  wonder, 
but  to  the  American  it  is  the  obvious  and  natu- 
ral result  of  a  written  constitution.  It  is,  in 
fact,  the  logical  consequence  of  a  limited  form 
of  government.  Suppose  a  legislature  invested 
with  only  a  limited  authority.  Any  act  out- 
side that  limit  is  unauthorized,  ultra  vires,-  as 
the  lawyers  would  say,  —  that  is,  beyond  the 
powers  of  the  legislature,  —  and  has  no  force. 
Every  one  may  disregard  it,  for  it  is  entirely 
invalid,  and  clearly  the  courts  cannot  give  it 

qui  releve  et  fait  dominer  alternativement  les  droits  de  l'un  et  la 
haute  mission  de  l'autre.  Un  autre  probleme  a  retenu  clans  une 
region  moyenne  l'attention  des  constituants  et  les  a  empeche  de 
glisser  sur  la  pente  vers  ces  deux  questions  extremes,  c'est  celui 
d'une  balance  a  e'tablir  entre  des  puissances  pr^existantes." 

He  adds  later  that  this  is  ceasing  to  be  true  of  England.  It  is 
only  fair  to  say  that  M.  Boutmy  considers  the  absolutism  of 
France  to  be  a  higher  form  of  civilization  than  the  decentralization 
of  the  United  States. 


CABINET  RESPONSIBILITY.  41 

any  effect.1  Inasmuch  as  the  legislature  rep- 
resents the  people,  and,  in  the  States  at  least, 
the  very  same  people  who  establish  the  Consti- 
tution, it  may  seem  strange  that  they  should 
limit  the  power  of  their  own  representatives ; 
but  it  is  precisely  because  the  people  alone  are 
the  unquestioned  source  of  all  government  in 
this  country  that  they  are  willing  to  limit  their 
own  power.  The  most  astonishing  thing  to 
foreign  statesmen,  however,  is  not  that  the  peo- 
ple should  profess  to  set  up  such  limits,  for  this 
has  been  done  in  European  constitutions,  but 
that  they  should  keep  them,  and  allow  the 
courts  to  refuse  to  enforce  the  acts  of  their  rep- 
resentatives when  they  overstep  them.  In  the 
United  States,  on  the  other  hand,  all  this  is  so 
much  a  matter  of  every-day  occurrence  that  we 
are  in  the  habit  of  looking  upon  a  constitution 
as  possessing  a  sort  of  intrinsic  strength,  and 
maintaining  itself  proprio  vigore.  The  illusion 
is  beautiful,  and  justified  in  our  own  case  by 
experience,  for  it  is  founded  on  the  respect 
which  our  citizens  feel  for  the  law,  and  espe- 
cially for  those  fundamental  principles  which 
are  embodied  in  their  constitutions.  But  in 
reality  a  constitution  can  retain  its  force  only 

1  In  the  Atlantic  Monthly  for  November,  1884,  Mr.  Brooks 
Adams  has  made  a  very  interesting  study  of  the  historical  devel- 
opment of  this  idea. 


42  ESSAYS   ON  GOVERNMENT. 

so  long  as  the  people  care  for  it  more  than  they 
care  to  effect  any  immediate  object.  Every 
government  is  bottomed  on  force,  or,  at  least, 
its  existence  depends  upon  the  consent  of  those 
who  have  power  to  change  it,  and  in  a  purely 
democratic  nation  the  form  of  government  de- 
pends upon  the  acquiescence  of  the  majority. 
When  the  people  make  up  their  minds  that 
they  would  rather  amend  the  Constitution  than 
fail  to  effect  some  desired  object,  it  becomes 
certain  that  the  Constitution  will  be  amended, 
and  if  this  happens  often  the  fate  of  the  Con- 
stitution is  sealed.  The  Constitution  of  the 
United  States  depends  upon  the  fact  that  the 
people,  with  rare  exceptions,  care  more  about 
that  Constitution  than  about  any  present  issue ; 
and  the  courts  are  supported  in  holding  a  stat- 
ute unconstitutional  because  the  people  cling  to 
the  fundamental  principles  of  law  represented 
by  the  court,  and  care  more  for  them  than  for 
the  statute  which  the  court  holds  invalid. 

The  reader  may  be  inclined  to  admit  all  this, 
and  ask  how  a  responsible  ministry  affects  the 
matter.  It  affects  it  vitally,  because,  as  I  have 
attempted  to  show,  a  responsible  ministry  in- 
volves the  fusion  of  the  legislative  and  execu- 
tive branches  of  the  government,  and  the  con- 
centration of  all  political  power  in  the  hands  of 
the  direct  representatives  of  the  people ;   and 


CABINET  RESPONSIBILITY.  43 

this,  accompanied  by  the  increased  excitement 
over  national  issues  and  the  decay  in  the  politi- 
cal power  and  importance  of  the  States,  would 
accustom  us  to  seeing  rapid  and  unlimited  ef- 
fect given  to  the  opinions  of  the  majority.  The 
people  would  soon  learn  to  chafe  at  the  delays 
and  obstructions  of  our  constitutional  methods, 
and  lose  the  habit  of  restraining  themselves  for 
the  sake  of  an  ideal ;  while  the  majority  would 
naturally  consider  every  political  issue  as  of 
paramount  importance,  and  feel  that  the  solu- 
tion of  a  pressing  question  ought  not  to  be  en- 
dangered for  the  sake  of  any  theoretical  prin- 
ciples, or  in  order  to  preserve  the  forms  of  a 
paper  constitution.  The  courts,  too,  would  find 
themselves  in  a  very  different  position.  Instead 
of  standing  between  the  different  branches  of 
government  among  which  political  authority  is 
divided,  and  limiting  the  power  of  one  for  the 
benefit  of  another,  they  would  have  the  full 
force  of  government  on  one  side,  and  nothing 
to  support  them  on  the  other.  At  present  the 
more  important  questions  of  constitutional  law 
before  the  court  usually  involve  the  authority 
of  the  nation  as  against  the  States,  or  the  rights 
of  the  States  as  against  the  nation,  or  the 
power  of  one  department  of  the  government  as 
against  another ;  and  even  when  the  court 
holds    an  act  unconstitutional    on   the  ground 


44  ESSAYS   ON  GOVERNMENT. 

that  it  violates  one  of  those  provisions  which 
are  established  solely  for  the  protection  of  indi- 
viduals, it  does  not  set  aside  the  act  of  the  peo- 
ple, but  only  the  act  of  a  body  which  but  par- 
tially represents  the  people,  and  exercises  only 
a  very  small  part  of  the  popular  sovereignty. 
But  under  a  parliamentary  government  a  court 
which  should  venture  to  declare  a  statute  un- 
constitutional would  be  brought  face  to  face 
with  the  people  themselves. 

In  a  speech  a  few  years  ago,  Lord  Salisbury 
is  reported  to  have  said  that  he  did  not  often 
envy  the  Americans  anything,  but  that  there 
was  one  institution  which  he  did  envy  them, 
and  which  he  should  like  to  see  adopted  in 
England,  and  that  was  a  court  possessing  power 
to  declare  a  statute  unconstitutional.  No  doubt 
the  Tory  leader  would  have  been  pleased  with 
any  institution  which  would  check  the  legisla- 
tion of  the  Liberals,  but  in  this  instance  he  was 
unfortunate,  because  he  desired  an  impossibil- 
ity. Apart  from  the  fact  that  the  central  prin- 
ciple of  the  English  Constitution  is  the  omnipo- 
tence of  Parliament  and  that  the  court  would 
find  no  ground  to  build  its  decisions  upon,  no 
court  in  England  could  possibly  have  power  to 
hold  acts  of  Parliament  invalid,  because  Parlia- 
ment is,  in  effect,  a  meeting  of  the  people  act- 
ing through   their   representatives.     Complete 


CABINET  RESPONSIBILITY.  45 

sovereignty  resides,  therefore,  in  Parliament, 
and  to  oppose  the  will  of  that  body  is  to  oppose 
the  will  of  the  people.  But  the  American  Con- 
gress has  not  complete  sovereignty,  nor  has 
any  department  of  the  government,  state  or 
federal,  nor  have  all  of  them  acting  together. 
Congress  has  no  authority  to  declare  the  will 
of  the  people,  except  within  the  limits  pre- 
scribed by  the  Constitution ;  for  the  Constitu- 
tion itself  is  the  final  expression  of  the  popular 
will,  and  is  binding  upon  every  officer  of  the 
government  as  the  supreme  law  of  the  land.  I 
am  not  speaking  of  the  Constitution  from  a 
legal  standpoint  alone.  I  am  speaking  of  it  as 
it  is  regarded  by  the  people  themselves ;  for  if 
this  view  of  the  matter  were  entertained  only  by 
the  lawyers,  no  court  which  assumed  power  to 
set  aside  an  act  of  Congress  would  be  tolerated 
for  a  moment.  The  power  of  our  courts,  then, 
to  pass  judgment  upon  the  validity  of  statutes, 
depends  upon  the  fact  that  the  voice  of  Con- 
gress is  not  the  voice  of  the  people.  But  if  a 
parliamentary  form  of  government  were  to  be 
introduced  into  this  country,  Congress,  like  the 
British  Parliament,  would  acquire  authority  to 
declare  the  will  of  the  people,  and  then  no 
court  could  long  withstand  its  power. 

I  have  so  far  attempted  to  consider  the  prob- 
able consequences  of    making  cabinet  officers 


46  ESSAYS   ON  GOVERNMENT. 

responsible  to  Congress,  and  to  prove  that,  un- 
der such  a  change  of  methods,  our  govern- 
ment would  centralize,  at  the  expense  of  the 
authority  and  independence  of  the  States,  and 
that  in  time  the  national  House  of  Representa- 
tives would  draw  unlimited  political  power  into 
its  own  hands.  But  a  recent  writer  on  the 
subject  claims  that,  in  the  absence  of  a  respon- 
sible ministry,  these  results  have  already  taken 
place;  and  this  essay  would  be  incomplete  with- 
out a  review  of  the  facts  on  which  he  bases  his 
opinion. 

In  his  book  on  Congressional  Government1 
Mr.  Wilson  uses  a  line  of  argument  very  differ- 
ent from  the  one  commonly  in  vogue  with  those 
who  advocate  a  parliamentary  government  for 
this  country.  He  says  nothing  inconsistent 
with  what  I  have  described  as  the  probable 
consequences  of  cabinet  responsibility,  but,  on 
the  contrary,  after  the  manner  of  Bagehot's  es- 
say on  the  English  Constitution,  he  attempts  to 
show  that  the  actual  form  of  our  government  is 
already  radically  different  from  the  plan  that 
our  forefathers  designed,  and  from  the  descrip- 
tions to  be  found  in  our  political  literature.  He 
claims  that  the  supposed  checks  and  balances 
of  the  system  have  failed ;  that  the  President 

1  Congressional   Government,    by   Woodrow   Wilson,    Boston, 
Houghton,  Mifflin  &  Co.,  1885. 


CABINET  RESPONSIBILITY.  47 

has  ceased  to  present  an  obstacle  to  the  power 
of  Congress ;  and  that  the  States  are  no  longer 
able  to  resist  the  encroachments  of  the  fed- 
eral government.  Of  the  power  of  the  Senate, 
curiously  enough,  he  says  little,  although  he 
devotes  a  chapter  to  that  body;  but  he  cer- 
tainly gives  the  reader  the  impression  that  he 
considers  all  real  power  centred  in  the  commit- 
tees of  the  House  of  Representatives.  All  this 
is  the  more  surprising  because  one  of  the 
complaints  against  Congress  which  we  hear 
most  commonly  is  that  the  House  of  Represent- 
atives has  brought  itself  into  such  a  condition 
that  it  is  unable  to  legislate.  Of  the  judiciary, 
after  explaining  that  the  courts  do  not  and  can- 
not put  any  effective  restraint  upon  the  actions 
of  Congress,  Mr.  Wilson  says:  "This  balance 
of  judiciary  against  legislature  and  executive 
would  seem,  therefore,  to  be  another  of  those 
ideal  balances  which  are  to  be  found  in  the 
books  rather  than  in  the  rough  realities  of 
actual  practice ; "  and  later  he  adds,  "  For  all 
practical  purposes  the  national  government  is 
supreme  over  the  state  governments,  and  Con- 
gress predominant  over  its  so-called  coordinate 
branches.  Whereas  Congress  at  first  over- 
shadowed neither  President  nor  federal  judi- 
ciary, it  now  on  occasion  rules  both  with  easy 
mastery  and  with  a  high  hand."     On  these  facts 


48  ESSAYS  ON  GOVERNMENT. 

he  founds  the  argument  that,  if  our  theoretical 
division  of  powers  has  miscarried  in  practice, 
and  if  our  government  has  already  become  cen- 
tralized, it  would  be  wise  to  adopt  that  form 
of  centralized  government  which  will  work  the 
best.  For  this  reason  he  advocates  a  responsible 
ministry.  The  argument  is  logically  sound, 
and  the  conclusion  follows  properly  enough,  if 
the  premises  are  admitted ;  but  these  I  cannot 
agree  with,  and  I  wish  to  consider  them  in  the 
brief  space  which  this  essay  will  allow. 

Our  government  has  undoubtedly  centralized 
a  good  deal  since  the  beginning  of  the  century ; 
for  the  greater  facility  of  communication  be- 
tween the  different  parts  of  the  Union,  the 
formation  of  vast  corporations  comprising  sev- 
eral States  in  the  scope  of  their  operations, 
and  the  consequent  industrial  development  of 
the  country,  demand  from  the  federal  govern- 
ment the  exercise  of  powers  which  were  far  less 
important  ninety  years  ago.  There  exists  un- 
questionably a  tendency  to  centralization,  which 
all  citizens  who  care  for  the  Constitution  should 
watch  with  a  jealous  eye;  but  it  is  a  tendency 
very  easy  to  exaggerate,  and  not  yet  developed 
to  such  an  extent  as  to  impair  the  political 
power  and  independence  of  the  States.  The 
war,  and  the  reconstruction  which  followed, 
necessarily  produced  for  a  time  a  great  increase 


CABINET  RESPONSIBILITY.  49 

in  the  power  of  the  national  government.  A 
part  of  this  increase  of  power  1ms  been  ren- 
dered permanent  by  the  adoption  of  the  recent 
amendments  to  the  Constitution,  while  the  de- 
cision of  the  Supreme  Court  in  the  legal-tender 
cases  has  assured  to  Congress  the  possession  of 
another  part ;  and  for  the  rest,  it  is  difficult  to 
shake  off  habits  of  political  thought  once  ac- 
quired ;  but  for  many  years  the  federal  govern- 
ment has  been  playing  a  constantly  decreasing 
part  in  the  internal  affairs  of  the  Southern 
States,  and  he  must  have  been  blind  to  the 
signs  of  the  times  who  did  not  perceive  long  ago 
the  tendency  to  leave  to  these  States  the  man- 
agement of  their  domestic  interests.  The  Su- 
preme Court,  moreover,  in  the  civil  rights  cases, 
struck  a  heavy  blow  at  the  paternal  policy  of 
Congress,  by  denying  to  it  the  right  to  inter- 
fere directly  with  the  social  condition  of  the 
citizens  of  the  States,  and  limiting  its  author- 
ity to  counteracting  and  redressing  the  effects 
of  the  action  of  the  state  authorities.  Mr. 
Wilson  cites  as  an  illustration  of  the  growth  in 
the  power  of  the  federal  government  the  enor- 
mous increase  in  the  number  of  federal  offi- 
cials ;  and  so  long  as  offices  are  made  a  reward 
for  party  service,  this  standing  army  of  place- 
men adds  dangerously  to  the  political  power  of 
the  United  States ;   but  when  we  obtain   the 


50  ESSAYS  ON  GOVERNMENT. 

complete  reform  of  the  civil  service  for  which 
every  citizen  ought  to  hope,  the  mere  number 
of  federal  office-holders  will  in  itself  be  little  or 
no  source  of  power  to  the  national  government. 
Mr.  Wilson  also  mentions  the  practice  of  spend- 
ing federal  money  to  make  internal  improve- 
ments ;  and  undoubtedly  this  power  of  Con- 
gress, which  was  hotly  debated  fifty  years  ago, 
has  now  become  an  unquestioned  part  of  our 
constitutional  system.  Yet,  even  during  the 
administration  of  President  Jackson,  Congress, 
under  the  name  of  deposits,  in  effect  gave  to 
the  States  the  surplus  from  the  national  treas- 
ury ;  and  it  can  hardly  be  said  that  Congress 
has  of  late  years  done  anything  under  the 
name  of  internal  improvements  which  carries 
the  doctrine  of  implied  powers  further  than 
this.  The  statute  which  provides  for  the  ap- 
pointment of  supervisors  of  election  is  cited  as 
the  most  galling  example  of  the  assumption  of 
power  by  the  national  government.  But  it 
must  be  remembered  that  the  statute  was  in- 
tended to  counteract  an  illegal  exercise  of 
power,  —  not  by  the  States,  it  is  true,  but  by 
persons  subject  to  the  control  of  the  States,  — 
and  that  the  statute  has  not  so  much  the  effect 
of  changing  the  original  balance  of  power  be- 
tween the  States  and  the  federal  government  as 
of    restoring  the   balance   of   power ;    for   the 


CABINET  RESPONSIBILITY.  51 

framers  of  the  Constitution  never  contemplated 
any  local  power  to  tamper  with  the  results  of 
elections.  The  fact  appears  to  be  that,  al- 
though the  United  States  has  largely  increased 
its  authority,  the  government  has  not  become 
centralized  to  such  an  extent  as  to  upset  the 
balance  of  power,  or  even  to  disturb  seriously 
the  equilibrium  of  the  system.  Nor  has  the 
gain  been  all  on  one  side.  For  a  long  time  cer- 
tain States,  of  which  New  York  is  a  conspicu- 
ous example,  chose  the  presidential  electors  by 
districts  ;  but  by  adopting  the  plan  of  choosing 
them  on  a  general  ticket  they  have  greatly 
consolidated  their  political  power.  It  is  also 
worthy  of  note  that  the  electoral  commission 
in  1876  decided  that  Congress  had  no  power 
to  go  behind  the  returns  of  the  States  in  count- 
ing the  votes  for  President ;  whereas  in  1839 
the  House  of  Representatives  refused  to  allow 
certain  members  whose  election  was  contested 
to  take  part  in  the  organization  of  the  House, 
although  these  members  held  the  official  cer- 
tificates of  the  State  governor  and  council  de- 
claring them  elected ;  for  the  House  denied 
that  the  certificate  of  the  State  gave  the  holder 
even  a  primd  facie  right  to  a  seat.  The  two 
cases  are  not  exactly  parallel,  and  the  decisions 
were  rendered  under  the  pressure  of  party 
excitement ;  but   still  they  go  far  to    disprove 


52  ESSAYS  ON  GOVERNMENT. 

the  statement  that  the  political  power   of  the 
States  has  decayed. 

The  relative  strength  of  the  three  depart- 
ments of  the  federal  government  has  suffered 
much  greater  changes  during  the  century,  but 
it  has  not  always  been  the  same  department 
that  has  encroached  on  the  others.  At  times 
the  power  of  Congress  has  been  in  the  ascend- 
ant, at  times  that  of  the  President ;  and  this 
must  continue  to  happen  as  long  as  Congresses 
differ  so  much  in  the  talent  and  experience  of 
their  members,  and  as  long  as  a  weak  and 
short-sighted  President  is  unable  to  exercise  as 
much  influence  as  a  President  of  ability  and 
force  of  character.  But  Mr.  Wilson  is  in  error 
when  he  states  that  "  Congress  is  supreme  over 
its  so-called  coordinate  branches."  A  sufficient 
proof  of  the  continuing  strength  and  independ- 
ence of  the  President  is  to  be  found  in  the  fact 
that  to  this  day  he  has  no  hesitation  in  using 
his  power  of  veto ;  for  the  veto  has  been  used 
more  freely  of  late  years  than  at  any  period  of 
our  national  existence.  If  any  further  evidence 
of  the  power  of  the  President  is  needed,  it  is 
enough  to  refer  to  the  last  great  struggle  lie 
has  had  with  Congress,  —  the  controversy  be- 
tween President  Hayes  and  Congress  about 
riders  upon  appropriation  bills,  in  which  the 
President  was  completely  victorious.     The  veto 


CABINET  RESPONSIBILITY.  53 

can,  of  course,  be  overridden  by  a  two-thirds 
vote  of  both  houses  of  Congress,  and  this  is 
done  as  often  as  the  majority  in  both  houses  is 
large  enough  to  make  it  possible  ;  but  that  is 
no  encroachment  on  the  part  of  Congress,  for 
it  is  merely  the  legitimate  exercise  of  a  power 
which  Congress  was  intended  to  possess. 

Turning  from  the  legislative  to  the  executive 
functions  of  the  President,  we  find  that  his 
power  has  undergone  very  great  variations. 
When  Jackson  adopted  the  practice  of  giving 
federal  offices  as  a  reward  for  party  service,  he 
forged  for  the  use  of  Presidents  a  political  in- 
strument of  tremendous  power;  but  the  Presi- 
dent has  not  been  suffered  to  reap  in  peace  the 
benefit  of  this  great  invention,  for  a  practice 
has  arisen  by  which  the  congressional  delega- 
tions from  the  several  States  have  acquired  a 
great  influence  in  the  distribution  of  the  fed- 
eral patronage.  This  practice  has  grown  grad- 
ually and  silently  ;  but  during  the  attempt  of 
Congress  to  tie  the  hands  of  President  Johnson 
it  passed  the  Tenure  of  Office  Act,  which  struck 
an  open  blow  not  only  at  the  power  of  the 
President  to  use  the  spoils  for  his  own  advan- 
tage, but  also  at  his  power  to  direct  the  policy 
of  his  own  administration.  At  this  time  the 
authority  of  the  President  fell  lower  than  it  has 
ever  been  before  or  since;  and  although  the  Ten- 


54  ESSAYS   ON  GOVERNMENT. 

ure  of  Office  Act  still  exists  in  a  slightly  mod- 
ified form,  it  has  not  the  political  importance 
which  it  possessed  in  Johnson's  day.  The  doc- 
trine that  the  President  has  no  right,  under 
the  Constitution,  to  remove  any  federal  officer 
without  the  consent  of  the  Senate,  is  not  new. 
It  has  been  a  subject  of  dispute  ever  since 
Washington's  administration,  but  in  Johnson's 
time  it  was  used  to  force  him  to  retain  a  Cabi- 
net officer  who  was  bitterly  opposed  to  his  policy. 
It  will  probably  be  a  long  time  before  the  Sen- 
ate tries  to  do  this  again,  and  it  is  clear  that 
such  an  attempt  could  not  now  be  successful. 
The  subject  of  the  appointing  power  of  the 
President  cannot  properly  be  dismissed  without 
a  reference  to  the  principle  of  senatorial  cour- 
tesy, by  which  each  Senator  of  the  President's 
political  party  controlled  an  important  part  of 
the  federal  patronage  in  his  own  State,  because 
the  contest  between  President  Garfield  and  Sen- 
ator Conkling  on  this  matter  is  one  indication 
of  the  recovery  by  the  President  of  his  lost  in- 
fluence. Mr.  Wilson's  views  in  regard  to  the 
position  of  the  President  are  explained  by  a 
passage  in  which  he  says :  "  No  one,  I  take  it 
for  granted,  is  disposed  to  disallow  the  principle 
that  the  representatives  of  the  people  are  the 
proper  ultimate  authority  in  all  matters  of  gov- 
ernment, and  that  administration  is  merely  the 


CABINET  RESPONSIBILITY.  55 

clerical  part  of  government."  The  first  pro- 
position contained  in  this  sentence  is  true  in  a 
parliamentary  government,  but  the  second  is 
not  true  in  any  form  of  government ;  and  that 
it  cannot  be  applied  to  our  President,  even  if 
we  pass  over  the  veto  and  the  power  to  control 
foreign  relations,  is  clear  when  we  remember 
how  large  a  part  the  executive  played  in  the 
final  settlement  of  the  Southern  question.  The 
importance  of  the  executive  in  the  solution  of 
that  question  was  not  exceptional.  It  has  long 
been  evident,  for  example,  that  Congress  can 
do  very  little  towards  the  reform  of  the  civil 
service  without  a  zealous  cooperation  on  the 
part  of  the  President.  A  stranger,  indeed, 
who  knew  nothing  of  America  except  what  he 
could  hear  during  a  presidential  campaign,  would 
readily  believe  that  the  President  held  the  only 
federal  office  of  any  real  importance.  This 
results  in  part  from  the  habit  of  making  the 
candidate  for  that  office  the  standard-bearer  in 
the  fight,  but  it  comes  also  from  the  fact  that 
the  President  not  only  wields  the  executive 
power,  but  has  also  a  decided  control  over  legis- 
lation.1 

It  is  only  necessary  to  look  at  the  volumes 
of  the  Supreme  Court  reports  to  be  convinced 

1  The  power  displayed  by  President  Cleveland  affords  a  striking 
confirmation  of  the  views  here  expressed. 


56  ESSAYS  ON  GOVERNMENT. 

that  the  judiciary  has  not  lost  its  independence 
or  its  power.  The  decisions  in  the  civil  rights 
cases,1  in  the  Arlington  Heights  case,2  and  in 
the  case  which  decides  that  the  House  of  Rep- 
resentatives has  no  power  to  examine  a  witness 
and  to  commit  him  for  contempt  on  a  matter 
not  strictly  connected  with  its  legislative  du- 
ties,3 all  prove  that  the  judiciary  has  not  be- 
come subservient  to  the  other  departments  of 
the  government.  In  spite  of  the  well-known 
charge  that  the  bench  was  packed  under  Presi- 
dent Grant,  and  of  the  unfortunate  connection 
of  the  judges  with  the  electoral  commission,  the 
Supreme  Court  appears  to  stand  at  the  pres- 
ent day  as  high  in  public  estimation  as  ever. 
I  might  with  truth  go  further,  and  say  that  the 
concentration  of  power  caused  by  the  civil  war 
has  turned  in  the  long  run  mainly  to  the  profit 
of  the  national  courts.  The  recent  amend- 
ments to  the  Constitution  have  increased  but 
little  the  powers  of  the  President  and  of  Con- 
gress, but  they  have  added  enormously  to  the 
authority  of  the  federal  judiciary. 

Among  the  recent  historical  studies  published 
at  Johns  Hopkins  University  is  a  valuable  es- 
say, by  Mr.  Horace  Davis,  on  the  "  Relations  of 

i  109  U.  S.  3. 

2  United  States  v.  Lee,  106  U.  S.  196. 

3  Kilbourn  v.  Thompson,  103  U.  S.  168. 


CABINET  RESPONSIBILITY.  57 

the  Departments  as  adjusted  by  a  Century," 
and  the  conclusions  of  the  author  are  singularly 
contradictory  to  those  of  Mr.  Wilson.  He 
shows  that  in  the  States  the  executive  has  been 
continually  gaining  at  the  expense  of  the  legis- 
lature, and  he  considers  that  the  President  is 
recovering  the  power  which  he  lost  during 
Johnson's  administration,  while  he  believes 
that  the  judiciary,  both  state  and  federal,  has 
steadily  increased  in  power  and  influence. 
Slight  variations  in  the  relative  strength  of  the 
different  departments  of  the  government  do 
not  affect  my  argument,  so  long  as  the  bal- 
ance of  the  system  remains  substantially  un- 
impaired. It  is  enough  that  the  power  of  the 
federal  government  is  still  limited  by  the  rights 
of  the  States ;  and  that  the  houses  of  Congress, 
the  President,  and  the  federal  judiciary  can 
each  check  any  serious  encroachments  on  the 
part  of  the  others. 

I  have  not  attempted  in  this  article  to  con- 
sider the  question  whether  a  parliamentary 
system  would  be  better  for  us  than  our  present 
Constitution,  much  less  to  discuss  the  relative 
merits  of  these  two  forms  of  government  in  the 
abstract.  In  fact,  the  time  has  passed  when 
every  good  American  believed  that  all  foreign 
nations  were  more  or  less  benighted  because 
they  did  not  adopt  our  Constitution.     For  my- 


58  ESSAYS  ON  GOVERNMENT. 

self,  I  believe  that  our  own  system  is  still  the 
best  for  us  ;  although,  apart  from  those  abuses 
which  have  no  necessary  connection  with  our 
form  of  government,  no  one  can  shut  his  eyes 
to  the  defects  inherent  in  the  system  itself. 
The  American  does  not  accept  the  maxim  that 
eternal  vigilance  is  the  price  of  liberty.  He 
has  altogether  too  much  tendency  to  believe 
that  liberty  and  good  government  can  be  bought 
with  a  written  constitution ;  and  that,  once 
possessed,  these  blessings  form  part  of  that 
property  of  which  he  cannot  be  deprived,  ex- 
cept by  due  process  of  law.  In  consequence  of 
the  division  of  political  power  into  so  many 
small  fragments,  the  ordinary  citizen  does  not 
take  interest  enough  in  any  one  of  them,  and 
leaves  the  control  of  public  affairs  too  exclu- 
sively in  the  hands  of  the  professional  politicians. 
Whether  these  defects  are  greater  than  those 
which  we  ought  to  expect  under  a  parliamen- 
tary government  I  do  not  here  pretend  to  in- 
quire. I  have  only  endeavored  to  prove  that 
a  responsible  ministry  cannot  form  a  part  of 
our  present  system  ;  that  one  or  the  other  of 
these  forms  of  government  must  be  accepted  in 
its  completeness,  with  all  its  merits  and  with 
all  its  faults.1 

1  In  dealing  with  this  subject  it  would  be  very  interesting,  if 
time  and  space  permitted,  to  carry  the  investigation  much  farther, 


CABINET  RESPONSIBILITY.  59 

and  to  examine  in  detail  each  of  the  different  parliamentary  govern- 
ments of  the  world.  Such  an  examination  would  be  especially 
important  in  the  case  of  several  of  the  British  colonies,  in  order 
to  explain  the  apparent  vitality  of  the  two  houses  in  Australia, 
and  the  existence  of  a  federal  system  in  Canada,  in  the  face  of  a 
responsible  ministry.  Any  one  who  is  thoroughly  familiar  with 
the  history  and  the  political  condition  of  the  colonies  will  easily 
perceive  the  causes  of  these  phenomena,  and  will  recognize  that 
thej'  are  not  in  reality  inconsistent  with  the  views  expressed  in 
this  essay. 

The  government  of  Canada  is  not  federal  in  at  all  the  same 
sense  as  that  of  the  United  States,  and  it  is  highly  probable  that, 
if  her  population  were  as  homogeneous  and  her  interests  as  har- 
monious as  ours,  she  would  have  entered  on  a  course  of  rapid 
centralization.  At  all  events  it  is  clear  that  the  lack  of  sympathy 
between  her  different  races,  and  the  fact  that  some  of  her  provinces 
are  more  naturally  drawn  into  commercial  relations  with  the  neigh- 
boring republic  than  with  one  another,  are  quite  enough  to  account 
for  any  amount  of  independence  on  the  part  of  her  local  legisla- 
tures. In  regard  to  Australia,  on  the  other  hand,  it  must  be  clear 
to  every  observer  that  the  connection  with  the  mother  country  has 
exercised  a  great  though  silent  influence  upon  all  the  conflicts  be- 
tween the  two  houses,  and  it  is  easy  to  believe  that  if  these  colonies 
had  been  entirely  independent  the  popular  chamber  would  in  each 
case  have  made  short  work  with  its  less  democratic  rival. 


II. 

DEMOCRACY  AND  THE  CONSTITUTION. 

As  private  Liberty  cannot  be  deem'd  secure  under  a  Government, 
wherein  Law,  the  proper  and  sole  Security  of  it,  is  dependent  on 
Will,  so  publick  Liberty  must  be  in  Danger,  whenever  a  free  Con- 
stitution, the  proper  and  sole  Security  of  it,  is  dependent  on  Will; 
and  a  free  Constitution,  like  ours,  is  dependent  ou  Will,  whenever 
the  Will  of  one  Estate  can  direct  the  conduct  of  all  Three. 

Boi.ixgbhoke,  Dissertation  on  Parties,  Letter  XVIII. 

The  founders  of  the  American  government 
derived  their  political  ideas  largely  from  the 
writings  of  Frenchmen,  but  they  owed  their 
political  experience  and  their  legal  views  to 
English  sources,  and  it  is  partly  for  this  reason 
that  the  public  law  of  the  United  States  is 
based  upon  two  independent  if  not  incon- 
sistent principles.  They  are,  democracy,  and 
the  sacredness  of  private  rights.  Of  these, 
the  former  has  until  recently  occupied  almost 
exclusively  the  attention  of  foreign  observers, 
for  it  is  aggressive  and  demonstrative,  making 
itself  known  by  exciting  elections  and  noisy 
debates  in  public  assemblies  ;  while  the  latter 
works  silently  by  means  of  the  courts  of  law, 


DEMOCRACY  AND  THE   CONSTITUTION.       61 

although  none  the  less  powerful  because  less 
noticed.  A  thorough  grasp  of  the  relations 
which  these  two  principles  bear  to  each  other, 
and  of  the  manner  in  which  they  are  combined 
by  our  various  constitutions,  is  necessary  in 
order  that  the  real  working  of  American  insti- 
tutions may  be  understood. 

Ever  since  the  Renaissance  stirred  men  to 
speculate  upon  government,  two  theories  con- 
cerning the  nature  of  political  power  have  made 
themselves  prominent:  the  first  dwelling  upon 
the  absolute  authority  of  the  sovereign,  and 
declaring  that  no  rights  can  exist  in  opposition 
to  his  will  ;  the  other  insisting  upon  certain 
natural  rights  of  individuals  which  the  sovereign 
can  never  legally  infringe.  To  these  theories 
there  correspond  two  opposite  views  of  the 
proper  functions  of  the  state.  According  to 
one  of  them,  —  commonly  called  the  paternal 
theory  of  government, —  it  is  the  duty  of  the 
sovereign  to  provide  directly  for  the  well-being 
of  his  subjects  ;  while  according  to  the  other 
view  the  ruler  ought  to  confine  himself  mainly 
to  the  restraint  of  violence,  the  administration 
of  justice,  and  defense  against  foreign  enemies, 
leaving  to  the  citizen  the  task  of  seeking  his 
own  prosperity  and  happiness  in  his  own  way. 
But  it  is  very  important  to  observe  that 
neither  the  paternal  system,  nor   the   system  of 


62  ESSAYS   ON  GOVERNMENT. 

individual  liberty,  lias  any  necessary  connec- 
tion with  a  particular  form  of  government,  and 
it  is  to  the  failure  to  recognize  this  fact  that 
a  great  deal  of  confusion  in  political  thought 
is  to  be  attributed.  So  universal  has  been 
the  conviction  that  an  increase  in  popular 
power  implied  an  increase  in  personal  freedom, 
that  the  same  term  is  still  used  to  designate 
both,  the  word  "  liberty  "  being  applied  indif- 
ferently to  the  possession  of  political  power,  or 
political  liberty,  and  to  personal  freedom,  or 
civil  liberty.  The  hold  which  this  error  has 
obtained  even  over  men  of  independent  thought 
is  strikingly  illustrated  in  Buckle's  "  History  of 
Civilization ;  "  for,  recent  as  that  work  is,  the 
author  assumes  throughout  that  the  progress 
of  democracy  is  inseparably  connected  with 
that  diminution  of  restraint  upon  personal  free- 
dom in  which  he  believes  civilization  to  consist. 
The  cause  of  such  a  confusion  of  ideas  is  to 
be  found  chiefly  in  a  reaction  against  the  pa- 
ternal despotisms  that  long  ruled  continental 
Europe,  and  in  the  fact  that  the  earliest  ef- 
forts of  democracy  were  devoted  to  the  destruc- 
tion of  privilege,  which  was  at  that  time  the 
great  barrier  to  individual  freedom.  But  there 
is  another  reason  for  the  association  of  demo- 
cracy with  personal  liberty  which  is  extremely 
suggestive.     Freedom   from   restraint   and   op- 


DEMOCRACY  AND  THE   CONSTITUTION.       63 

pression,  the  right  of  every  man  to  do  what  he 
pleases,  is  always  claimed  by  those  who  are 
out  of  power,  and  who  feel  that  they  are  in  the 
hand  of  their  enemies.  Toleration  is  always 
an  article  of  faith  with  a  persecuted  sect,  but 
unfortunately  it  is  only  too  rarely  that  this 
tenet  is  remembered  when  the  sect  succeeds 
in  getting  control  of  the  state.  Now  democracy, 
like  all  other  principles  in  the  world,  was  an 
outlaw  in  its  infancy,  and  many  of  its  most  ar- 
dent advocates,  looking  upon  themselves  as  op- 
pressed by  the  rulers  of  the  Old  "World,  were 
naturally  of  opinion  that  the  activity  of  govern- 
ment ought  to  be  reduced  to  the  smallest  pos- 
sible limit.  But  the  fact  that  this  doctrine 
has  no  necessary  connection  with  democracy  is 
clearly  seen  in  the  history  of  France,  in  which 
the  habits  of  centralization  and  state  tutelage 
formed  under  the  monarchy  were  rather  in- 
creased than  diminished  by  the  revolution,  and 
have  survived  every  subsequent  change  in  the 
form  of  the  government. 

It  was  formerly  believed  that  all  violations 
of  private  rights,  and  all  interference  with  per- 
sonal liberty,  proceeded  from  rapacity  or  lust 
for  power  on  the  part  of  the  monarch  or  ruling 
aristocracy,  but  experience  has  shown  that  this 
is  a  mistake.  Even  if  selfish  motives  could  be 
quite  eliminated,  and  if  the  persons  who  govern, 


64  ESSAYS   ON  GOVERNMENT. 

whether  king,  aristocracy,  or  popular  party, 
were  free  from  any  temptation  to  use  their 
power  for  private  advantage,  the  danger  of  ex- 
cessive meddling  with  individual  freedom  would 
not  be  put  aside  ;  for  it  is  a  matter  of  every- 
day experience  that  no  one  is  more  intolerant, 
or  more  eager  to  force  the  whole  world  to  walk 
in  his  own  path,  than  the  genuine,  whole-souled 
philanthropist.  It  must  never  be  forgotten 
that  liberty  means  liberty  to  do  wrong  as 
well  as  to  do  right ;  and  any  ruler  must  be 
well-nigh  superhuman  who  can  look  on  calmly 
while  a  part  of  his  subjects  pursue  a  course  of 
conduct  which  he  considers  injurious  to  the 
community,  and,  possessing  the  power  to  pre- 
vent such  conduct,  refrains  from  making  use 
of  it.  A  ruler  of  this  kind  would  be  regarded 
by  most  people  as  grossly  derelict  in  his  duty ; 
and  if  in  a  democracy  the  majority  of  the 
voters  considered  the  acts  in  question  harmful 
or  wicked,  the  government  would  speedily  be 
replaced  by  another  which  would  put  a  stop  to 
them.  Eveiy  government,  in  such  cases,  is  cer- 
tain to  make  use  sooner  or  later  of  the  power 
at  its  command,  because  the  number  of  people 
who  are  really  convinced  that  it  is  better  to 
permit  wrong  than  to  interfere  with  personal 
liberty  is  extremely  small. 

I  have  said  that  this  would  be  true  even  if 


DEMOCRACY  AND   THE   CONSTITUTION.       65 

selfish  motives  could  be  eliminated,  but  the 
supposition  is  impossible.  Rousseau,  indeed, 
tried  to  prove  that  the  interest  of  the  individual 
could  never  conflict  with  that  of  the  majority, 
and  he  went  so  far  as  to  declare  that  no  com- 
munity in  which  political  parties  exist  is  ca- 
pable of  a  free  expression  of  public  opinion. 
The  same  ideas  prevailed  even  among  men  who 
did  not  indulge  in  these  sophisms,  for  it  was 
the  general  habit  in  the  last  century  to  speak 
of  the  people  as  a  whole,  without  inquiring 
whether  the  aims  of  all  parts  of  the  com- 
munity were  of  necessity  identical ;  and  it  is 
probable  that  nothing  which  has  occurred 
would  have  surprised  the  democrats  of  that 
time  more  than  the  immense  development 
of  party  in  free  countries.  But  to-day  it  is 
perfectly  clear  that  the  interests  of  all  parts 
of  society  do  not  invariably  coincide  ;  or  rather 
it  is  clear  that  all  classes  of  citizens  do  not 
believe  that  their  interests  are  alike,  and  this 
for  our  present  purpose  is  the  same  thing,  be- 
cause a  popular  majority,  which  is  convinced 
that  its  welfare  demands  a  sacrifice  of  the 
rights  of  a  certain  class  in  society,  is  under  a 
strong  temptation  to  trample  upon  them,  just 
as  a  monarch  or  an  aristocracy  would  be.  No 
possessor  of  power,  whether  his  impulses  are 
philanthropic   or   mercenary,   is   ever   gratified 


66  ESSAYS  ON  GOVERNMENT. 

by  restraints  imposed  upon  his  use  of  it,  and 
there  is  a  great  truth  condensed  into  the  short 
German  couplet :  — 

"  Und  der  Konig  absolut, 
Wenn  er  unsern  Willen  thut." 

It  is  clear  that  where  absolute  power  is  vested 
in  any  man  or  body  of  men,  the  rights  of  indi- 
viduals depend  upon  the  will  of  that  man  or 
body;  and  this  is  no  more  true  in  the  case  of  a 
king  than  in  that  of  a  legislative  assembly  or  a 
sovereign  people.  Now  we  have  seen  that 
these  are  all  constantly  tempted  to  abuse  their 
power  both  from  selfish  and  from  noble  mo- 
tives. If,  indeed,  we  compare  the  position  of 
a  monarch  with  that  of  a  popular  majority, 
we  shall  find  that  the  former  has  the  greater 
reason  to  curb  the  exercise  of  his  will,  and  that 
his  tyranny  is  therefore  likely  to  be  the  less 
absolute  of  the  two.  He  is  always  very  much 
restrained  by  public  opinion  as  well  as  by  fear 
of  actual  resistance,  whereas  a  popular  majority, 
or  a  representative  assembly  possessed  of  ab- 
solute power,  being  itself  the  organ  of  public 
opinion,  has  little  except  the  votes  of  its  own 
members  to  reckon  with;  and  the  fear  of  an 
insurrection  on  the  part  of  the  oppressed  mi- 
nority, such  as  De  Tocqueville  expected,  does 
not  appear  to  have  exerted  a  restraining  influ- 
ence, to  an  appreciable  extent,  in  modern  times. 


DEMOCRACY  AND    THE   CONSTITUTION.       67 

Wealth,  when  threatened  with  hostile  legisla- 
tion, has  shown  a  tendency  to  resort  to  cor- 
ruption, but  the  fear  of  this  never  cools  the 
zeal  of  the  law-maker,  and  corruption  is  prob- 
ably the  worst  evil  that  can  attack  the  body 
politic.  A  multitude,  moreover,  is  less  steadied 
by  a  sense  of  responsibility  than  a  single  au- 
tocrat. Nor  is  the  influence  of  its  advisers 
of  a  better  character,  for  it  has  become  al- 
most proverbial  that  the  demagogue  is  made 
of -the  same  stuff  as  the  courtier.  His  flattery, 
and  his  willingness  to  surrender  his  own  con- 
victions to  the  wishes  of  his  master,  are  the 
same  ;  and  although  the  open  rivalry  of  oppos- 
ing parties  in  modern  popular  government  gives 
an  opportunity  for  criticism  upon  the  manage- 
ment of  affairs  which  does  not  exist  under  an 
absolute  monarchy,  it  furnishes  also  a  means  of 
openly  tempting  the  sovereign  people  to  change 
its  ministers  by  offers  of  fresh  benefits  to  be  de- 
rived from  the  spoliation  of  individuals.  There 
are,  no  doubt,  certain  very  striking  differences 
between  the  despotism  of  a  popular  majority 
and  that  of  former  monarchies.  Modern  demo- 
cracies do  not  inflict  punishments  for  heresy  in 
political  or  religious  matters,  but  this  is  chiefly 
because  orthodoxy  is  not  considered  of  the  same 
importance  to  the  public  as  formerly,  and  be- 
cause we  have  learned  that  persecution  is  rarely 


68  ESSAYS  ON  GOVERNMENT. 

an  effective  method  of  producing  uniformity  of 
creed.  There  is  also  a  great  diminution  in  the 
use  of  violence,  but  tins  is  due  not  so  much  to 
any  greater  respect  for  liberty  in  democracies  as 
to  the  growing  abhorrence  of  bloodshed,  and  to 
the  fact  that  the  opposition  do  not  and  cannot 
resort  to  revolutionary  methods  to  the  same  ex- 
tent as  under  other  forms  of  government.  It 
is  due  still  more,  perhaps,  to  an  appreciation 
of  the  immense  superiority  of  legislation  as  a 
weapon  for  carrying  into  effect  the  will  of  the 
party  in  power. 

The  paternal  theory  of  government  lias  of 
late  years  been  gaining  ground  rapidly  in  all 
countries,  and  especially  in  England,  which 
has  always  been  regarded  as  the  very  home  of 
personal  freedom.  The  habit  now  so  common 
in  England  and  her  dependencies,  of  meas- 
uring- the  efficiency  of  a  government  by  the 
quantity  of  statutes  it  has  produced,  is  a  signifi- 
cant symptom  of  this  tendency ;  for  it  must  be 
remembered  that  a  large  proportion  of  these 
acts  are  neither  more  nor  less  than  a  regulation 
by  the  state  of  dealings  between  private  per- 
sons, and  that  in  many  cases  they  involve  an 
actual  violation  of  vested  rights.  There  is  a 
saying  often  quoted,  to  the  effect  that  the  chief 
task  of  law-makers  to-day  consists  in  undoing 
the  work  of  their  predecessors ;  but  if  so,  one 


DEMOCRACY  AND   THE   CONSTITUTION.       69 

might  expect  that  a  sympathy  with  their  suc- 
cessors would  induce  them  to  pause  and  reflect 
upon  the  vast  legislative  labors  which  their  ac- 
tivity is  piling  up  for  posterity. 

This  subject  has  of  late  years  attracted  the 
attention  of  several  writers,  of  whom  Mr.  Her- 
bert Spencer  is  by  far  the  best  known.  In 
his  collection  of  essays  entitled  "  The  Man 
versus  the  State,"  Mr.  Spencer  reviews  the 
recent  English  legislation  and  shows  very  for- 
cibly its  paternal  character,  but  unfortunately 
his  discussion  of  the  cause  of  such  a  state  of 
things  is  by  no  means  equally  satisfactory. 
The  fact  is  that  he  is  blinded  by  a  theory.  lie 
attempts  to  apply  the  principle  of  evolution 
rigidly  to  the  history  of  mankind,  and  to  prove 
that  civilization  proceeds  by  stages  as  invaria- 
ble and  as  clearly  marked  as  those  revealed  in 
the  physical  life  of  plants  and  animals.  With 
this  view  he  divides  the  progress  of  society 
into  an  earlier  or  militant  stage,  in  which,  for 
the  sake  of  supremacy  in  war,  liberty  of  action 
is  denied  to  the  individual,  even  the  most  ordi- 
nary affairs  of  life  being  regulated  by  a  disci- 
pline like  that  of  an  army  ;  and  into  a  later  or 
industrial  stage,  in  which  the  state  confines 
itself  to  the  preservation  of  order  and  the  ad- 
ministration of  justice,  leaving  all  other  mat- 
ters to  the  discretion  of  the  citizen.     In  accord- 


70  ESSAYS   ON  GOVERNMENT. 

ance  with  this  theory  he  explains  the  paternal 
tendency  of  British  legislation  by  saying  that 
England  is  unfortunately  relapsing  into  the 
militant  stage  of  civilization,  —  an  idea  which 
cannot  fail  to  amaze  any  one  familiar  with  the 
recent  foreign  policy  of  that  country.  But 
strange  as  the  suggestion  that  the  British  lion 
is  recovering  a  dangerous  amount  of  pugnacity 
may  appear,  it  is  no  less  astonishing  to  hear 
a  man  of  science  complaining  of  that  animal 
for  trying  to  change  the  unalterable  course  of 
nature.  If  it  is  true  that  the  industrial  follows 
the  militant  stage  as  certainly  as  the  evening 
follows  the  morning,  and  if  to  reverse  this 
order  is  as  impossible  as  to  cause  the  shadow 
on  the  sun-dial  to  return  ten  degrees  backward, 
then  any  indignation  or  alarm  at  the  course 
pursued  by  English  legislators  must  be  quite 
out  of  place.  As  well  might  the  German  pro- 
fessor, who  proved  to  his  own  satisfaction  that 
the  monkey  is  physically  incapable  of  throwing 
a  stone,  get  angry  with  the  brute  for  showing 
signs  of  an  intention  to  try  it. 

However  alarming  the  drift  towards  pater- 
nal government  may  be,  it  ought  not  to  sur- 
prise any  one  who  has  studied  the  course  of 
thought  during  the  last  hundred  years.  At 
the  time  of  the  French  Revolution,  and  to  some 
extent  on   the   occasion   of  every  great  demo- 


DEMOCRACY  AND  THE  CONSTITUTION.       71 

cratic  victory  won  in  later  years,  a  belief  has 
prevailed  that,  by  means  of  artificial  social  ar- 
rangements, mankind  had  been  robbed  of  inesti- 
mable blessings  which  it  would  otherwise  pos- 
sess, and  that  to  secure  the  complete  happiness 
and  prosperity  of  the  people  nothing  was  neces- 
sary but  to  break  the  chains  of  despotism  and 
set  the  world  free;  but  after  the  old  order  of 
things  had  been  upset,  and  history  had  begun 
afresh,  it  was  found  that  mankind  had  not  at- 
tained the  state  of  perfect  happiness  which  had 
been  foretold,1  and  which  it  never  will  reach  so 
long  as  sin,  folly,  and  weakness  are  such  large 
elements  in  its  composition.  Finding  that  the 
mere  destruction  of  existing  institutions  and 
the  advent  of  democracy  had  not  produced  all 
that  was  expected  of  them,  and  still  believing 
the  millennium  within  their  grasp,  men  natu- 
rally began  to  make  use  of  the  power  of  legis- 
lation which  lay  at  their  disposal,  in  hopes  of 
improving  the  condition  of  society.  The  first 
step  in  this  direction  was  philanthropic,  and 
consisted  of  an  unselfish  endeavor  to  alleviate 
suffering  and  prevent  wrong.  To  this  class  of 
efforts  belong  the  liquor  laws,  and  all  other  at- 
tempts to  make  men  good  against  their  will ; 
but  far-reaching  and  grave  as  legislation  of  this 

1  This  idea  is  forcibly  presented  in  Mr.  Stimson's   article  on 
"The  Ethics  of  Democracy,"  Scribner's  Magazine,  June,  1887. 


72  ESSAYS  ON  GOVERNMENT. 

sort  may  be,  it  is  by  no  means  the  most  radical 
that  is  to  be  expected.  The  next  step  is  a  great 
deal  more  momentous.  The  majority  of  the 
people  are  little  favored  with  the  blessings  that 
flow  from  wealth,  and  perceiving  that  wealth 
depends  upon  law,  and  that  the  power  of  mak- 
ing laws  is  within  their  own  control,  they  are 
strongly  tempted  to  make  use  of  that  power  in 
order  to  acquire  for  themselves  a  part  of  the 
benefits  of  property.  This  is  the  most  serious 
form  that  paternal  government  can  assume, 
and  it  is  unfortunately  in  this  form  that  it  is 
spreading  rapidly  to-day.  To  any  one,  there- 
fore, who  reflects  upon  the  socialistic  laws 
already  enacted,  and  who  sees  with  dread  the 
vast  quantity  of  such  legislation  which  is  de- 
manded, it  is  vitally  important  to  examine  the 
various  political  institutions  in  democratic  coun- 
tries, and  to  inquire  how  far  they  are  adapted 
to  promote  or  to  check  this  tendency. 

It  is  very  easy  to  overestimate  the  effect  of 
political  institutions  upon  the  development  and 
prosperity  of  a  community,  for  unless  they  are 
closely  fitted  to  the  condition  of  the  people  they 
are  certain  to  be  broken  or  twisted  quite  out  of 
shape  by  the  forces  which  they  are  designed  to 
control.  An  instance  of  the  tendency  to  fall 
into  this  mistake  is  to  be  found  in  the  remark 
sometimes  made  by  foreign  observers  that  the 


DEMOCRACY  AND  TEE  CONSTITUTION.       73 

one  question  which  the  Americans  failed  to 
settle  clearly  in  the  Constitution — the  question, 
that  is,  of  the  right  of  a  State  to  secede  from 
the  Union  —  became  the  cause  of  a  terrible  civil 
war.  Now  any  one  who  is  thoroughly  familiar 
with  the  history  of  the  United  States  will  rec- 
ognize the  fact  that  no  provision  on  the  subject 
of  secession,  however  clear,  could  have  averted 
the  struggle  between  the  North  and  the  South. 
It  might  have  changed  the  legal  and  political 
aspect  of  the  quarrel.  It  might  have  post- 
poned the  war,  or  even  altered  the  proportions 
of  the  opposing  forces;  but  it  could  not  have 
caused  two  different  social  systems  to  live  side 
by  side  in  peace.  It  is  only  by  adapting  an 
institution  to  the  temperament  and  habits  of 
thought  of  the  community  that  it  can  be  made 
to  work  successfully ;  and  the  failure  to  under- 
stand this  principle,  combined  with  the  diffi- 
culty of  applying  it  in  practice,  is  no  doubt  the 
chief  cause  both  of  those  catastrophes  which 
have  brought  artificial  constitutions  into  disre- 
pute, and  of  the  comparative  stability  of  all 
forms  of  government  which  have  resulted  from 
a  slow  process  of  development.  The  Supreme 
Court  of  the  United  States,  for  example,  could 
never  have  acquired  its  power  of  deciding  a  stat- 
ute unconstitutional  in  any  other  country,  at 
least  in  any  other  than  an  Anglo-Saxon  country, 


74  ESSAYS  ON  GOVERNMENT. 

and  this  would  be  true  even  if  the  Constitu- 
tion had  been  copied  word  for  word.  A  stran- 
ger who  knew  nothing  of  the  actual  working 
of  the  American  government  might  very  well 
study  that  instrument  from  beginning  to  end 
without  ever  suspecting  that  the  court  pos- 
sessed any  such  power  at  all.  Institutions  well 
adapted  to  the  temper  of  the  nation  have,  how- 
ever, an  important  effect  in  directing  and  mod- 
erating political  forces,  and  they  exert  a  still 
greater  influence  by  moulding  the  opinions 
and  habits  of  thought  of  the  people. 

Taking,  then,  democracy  as  our  base  of  oper- 
ations, and  assuming  that  the  will  of  the  ma- 
jority when  legally  expressed  is  in  all  matters 
to  be  considered  law,  let  us  inquire  what  in- 
stitutions are  appropriate  to  a  paternal  gov- 
ernment, and  what  contrivances,  on  the  other 
hand,  can  be  devised  for  the  protection  of  in- 
dividual freedom  and  independence.  Let  us 
suppose,  in  the  first  place,  that  paternal  govern- 
ment is  the  object  to  be  sought,  and  that  it  is 
the  mission  of  the  state  to  provide  for  the  wel- 
fare and  to  promote  directly  the  progress  of 
society.  In  this  case  it  is  evident  that  there 
ought  to  exist  no  institution  which  will  enable 
private  persons  to  bar  that  progress,  or  to  pre- 
vent the  state  from  carrying  out  its  benefi- 
cent designs.      It  is  clear  that  the  best   form 


DEMOCRACY  AND  THE   CONSTITUTION.       lb 

of  government  is  one  which  will  organize  the 
majority  into  as  compact  a  body  as  possible, 
and  concentrate  the  whole  force  of  the  commu- 
nity against  the  individual.  For  a  large  coun- 
try these  requisites  are,  perhaps,  to  be  found 
most  completely  realized  in  the  parliamentary 
system  of  government  as  it  is  developing  in 
England.  I  say  developing,  because,  although 
parliamentary  government  in  Great  Britain  is 
nearly  two  centuries  old,  it  is  only  very  re- 
cently that  it  has  begun  to  adapt  itself  to  the 
conditions  of  a  widely  extended  franchise,  and 
to  form  part  of  a  democratic  system.  English 
institutions,  although  historically  intricate,  are 
to-day  in  their  main  features  extremely  sim- 
ple. A  single  assembly  wields  the  whole  force 
of  the  nation.  It  is  led,  and  in  fact  ruled, 
by  a  committee  responsible  to  the  majority 
of  the  members,  who  in  their  turn  represent 
as  nearly  as  possible  the  majority  of  the  citi- 
zens. These  are  the  chief  outlines  of  the 
plan.  Now  if  the  object  of  government  is  to 
formulate  and  give  effect  to  the  wishes  of  the 
majority,  among  a  people  too  numerous  and 
too  widely  scattered  to  assemble  and  transact 
public  business  in  a  mass  meeting,  no  better 
method  of  accomplishing  that  result  could 
probably  be  devised.  In  such  a  case  a  more 
complicated  system  of  legislative  bodies  would 


76  ESSAYS   ON   GOVERNMENT. 

be  out  of  place,  and  the  famous  aphorism  of 
the  Abbe  Sieves  applies  to  it  perfectly  :  "  If  a 
second  chamber  dissents  from  the  first  "  (and 
therefore  from  the  popular  majority),  "  it  is 
mischievous  ;  if  it  agrees,  it  is  superfluous." 

A  representative  is  always  les3  violent  than 
a  pure  democracy,  because  the  legislators  have 
a  keener  sense  of  personal  responsibility ;  but 
the  parliamentary  system  is,  in  this  respect, 
the  nearest  approach  to  a  pure  democracy  that 
representative  government  is  capable  of  fur- 
nishing, because  a  member  of  the  dominant 
party  in  the  popular  chamber,  by  following 
blindly  the  lead  of  the  ministry,  can  divest 
himself  almost  completely  of  responsibility  for 
his  own  judgment,  and  feel  that  he  conforms 
to  the  opinion  of  his  constituents.  The  Swiss 
device  of  the  referendum,  although  commonly 
supposed  to  savor  of  pure  democracy  far  more 
than  the  English  form  of  government,  is  in  re- 
ality more  conservative.  It  is  simply  a  means 
by  which  the  people  can  put  a  veto  upon  the 
acts  of  their  representatives,  and  to  the  dismay 
of  the  radicals  it  has  been  used  to  defeat  a  num- 
ber of  their  favorite  measures.  The  reason  for 
this  has  been  suggested  by  Sir  Henry  Maine  in 
his  book  on  "  Popular  Government ''  (p.  97). 
"  It  is  possible,"  he  says,  "  by  agitation  or  ex- 
hortation, to  produce  in  the  mind  of  the  aver- 


DEMOCRACY  AND   THE  CONSTITUTION.      77 

age  citizen  a  vague  impression  that  lie  desires 
a  particular  change.  But  when  the  agitation 
has  settled  down  on  the  dregs,  when  the  ex- 
citement has  died  away,  when  the  subject  has 
been  threshed  out,  when  the  law  is  before  him 
in  all  its  detail,  he  is  sure  to  find  in  it  much 
that  is  likely  to  disturb  his  habits,  his  ideas,  his 
prejudices,  or  his  interests,  and  so,  in  the  long 
run,  he  votes  '  No '  to  every  proposal."  Whether 
we  should  be  inclined  to  go  to  quite  this  length 
or  not,  it  is  clear  that  a  man  will  often  vote 
against  a  law  although,  in  the  heat  of  party 
strife,  he  may  have  helped  to  elect  a  candidate 
who  announced  a  measure  of  the  same  nature 
as  part  of  his  political  programme.  It  is  one 
thing  for  a  laborer  to  vote  for  a  party  which 
declares  that  it  will  protect  him  from  the  grind- 
ing oppression  of  the  capitalist,  but  it  is  a  very 
different  thing  for  the  same  man  to  vote  for  a 
law  which,  under  the  name  of  protection,  cur- 
tails his  right  to  earn  money  as  best  he  can. 
Now  under  a  parliamentary  government  the 
vote  for  the  candidate  is  the  last  word  the 
citizen  has  to  say  upon  the  matter,  and  the 
member  takes  his  seat  believing  that  he  has 
been  given  a  mandate  to  carry  his  programme 
into  effect.  In  England,  indeed,  as  has  been 
often  pointed  out,  the  parties  are  beginning  to 
go  farther  than  the  popular  mandate  can  be 


78  ESSAYS   ON  GOVERNMENT. 

supposed  to  require,  and  there  are  signs  of  a 
disposition  to  bid  for  the  vote  of  various  classes 
in  the  community  by  offers  of  legislation  which 
will  confer  benefits  on  the  many  at  the  expense 
of  the  few. 

Even  the  so-called  initiative,  an  institution 
established  in  many  of  the  Swiss  cantons  which 
enables  a  certain  number  of  citizens  to  propose 
a  law  and  require  a  popular  vote  upon  it,  is  in 
some  ways  more  conservative  than  the  parlia- 
mentary system,  because  it  does  not  present  the 
same  opportunities  for  organizing  and  consoli- 
dating a  popular  majority,  and  political  pa/ties 
exert  in  fact  far  less  influence  in  Switzerland 
than  in  most  other  democratic  countries.  Some 
laws,  it  is  true,  have  been  enacted  in  the  Swiss 
cantons  which  are  far  too  radical  for  the  Eng- 
lish Parliament;  but  before  this  can  be  used 
as  an  argument  to  prove  the  radical  nature  of 
Swiss  institutions,  it  would  be  necessary  to 
make  a  careful  comparison  of  the  two  peo- 
ples, of  their  social  conditions,  their  habits  of 
thought,  and  their  respect  for  existing  rights. 
It  is  to  be  remembered,  moreover,  that  Eng- 
land is  really  only  just  beginning  to  be  a  dem- 
ocratic country  ;  and  it  is  highly  important  to 
observe  that  a  law  like  that  imposing  a  heavy 
progressive  income  tax  is  a  very  different  thing 
in  a  comparatively  poor  country  like  Switzer- 


DEMOCRACY  AND  THE  CONSTITUTION.       79 

land,  from  what  it  would  be  in  a  great  and  rich 
industrial  nation  like  the  English. 

In  a  democratic  country  ruled  by  one  all- 
powerful  assembly,  the  only  restraint  upon  the 
desires  of  the  majority  consists  in  a  conserva- 
tive tone  of  thought,  an  attachment  to  existing 
forms  of  law,  and  a  reverence  for  them  as 
something  peculiarly  sacred.  A  belief  in  the 
inherent  perfection  of  the  Code  Napoleon  is 
said  to  have  had  a  marked  effect  in  restraining 
law  making  in  France,  and  in  directing  activity 
into  political  instead  of  legislative  channels; 
and  there  is  no  doubt  that  such  a  sentiment 
can  for  a  time  exert  a  considerable  influence, 
but  it  fades  quickly  away  if  brought  into  con- 
stant collision  with  the  will  of  the  majority. 
In  France  such  collisions  are  much  less  fre- 
quent than  they  would  be  in  England  or  Amer- 
ica, because  the  right  of  the  majority  is  in 
reality  much  less  recognized.  De  Tocqueville 
has  remarked l  that  the  French  philosophers  be- 
fore the  Revolution,  while  extolling  the  rights 
of  the  majority  and  the  infallibility  of  the 
human  reason,  in  reality  despised  the  major- 
ity, and  admired  only  their  own  reason.  The 
ardent  French  republican  at  the  present  day 
breathes  the  same  spirit,  and  believes  not  only 
that  the  republic  is  the  best  form  of  govern- 

1  Ancien  Regime  el  la  Revolution,  note  to  book  iii.  chap.  i. 


80  ESS  ATS  ON  GOVERNMENT. 

ment,  and  that  the  people  are  entitled  to  have  it 
if  they  want  it,  but  that  they  ought  to  have 
it  whether  they  want  it  or  not.  The  greatest 
danger  to  the  French  Republic  consists  in  the 
blindness  of  its  votaries,  who  cannot  see  that 
a  large  and  influential  part  of  the  nation  care 
more  for  the  security  of  their  civil  and  religious 
rights  than  for  any  form  of  government. 

The  English  have  shown  in  the  past  more 
respect  for  law  and  custom  than  any  other  peo- 
ple in  modern  times,  but  now  this  feeling  is 
very  sensibly  diminishing,  as  any  one  can  see 
who  will  compare  the  parliamentary  debates  of 
the  last  century  with  those  which  take  place 
at  the  present  day.  The  former  turn,  as  Sir 
Henry  Maine  has  pointed  out,  to  a  surprising 
extent,  on  questions  of  law.  Parliament  shut 
its  ears  when  Burke  argued  that  the  taxation 
of  the  American  colonies  was  inexpedient,  and 
only  wanted  to  hear  whether  it  was  legal  or  not. 
Whereas  in  all  the  recent  debates  it  is  not  only 
universally  assumed  that  Parliament  has  power 
as  a  matter  of  law  to  do  whatever  it  pleases,  but 
the  whole  issue  is  treated  as  one  of  expediency, 
and  existing  rights  weigh  little  in  the  balance. 
The  progress  of  thought  has  upset  the  old  no- 
tion of  natural  rights,  and  has  destroyed  a  great 
part  of  the  reverence  felt  for  legal  traditions, 
and  for  that  "  glorious  constitution  "  which  used 


DEMOCRACY  AND   THE  CONSTITUTION.       81 

to  be  the  boast  of  Englishmen  of  all  parties. 
It  is  also  to  be  noticed,  that  the  British  con- 
stitution itself,  with  all  that  vast  collection  of 
charters,  statutes,  customs,  and  traditions  which 
the  word  implies,  never  comprised  anything 
designed  to  protect  the  individual  against  op- 
pression by  the  majority.  Take  the  authority 
of  the  House  of  Commons  in  matters  of  taxa- 
tion. The  fact  that  the  king  could  levy  no 
taxes  without  the  consent  of  his  faithful  com- 
mons prevented  him,  no  doubt,  from  becom- 
ing an  absolute  monarch  like  his  brother  of 
France ;  and  the  privilege  of  the  lower  house 
in  originating  bills  of  supply  has  had  a  great 
deal  to  do  with  the  depression  of  the  influence 
of  the  peers,  but  neither  of  these  things  was 
ever  adapted  to  check  the  majority  of  the 
people,  or  even  to  prevent  them  from  plunder- 
ing their  rich  neighbors  under  the  guise  of 
taxation,  if  they  felt  inclined  to  do  so.  The 
provisions  in  the  Bill  of  Rights,  also,  and  the 
famous  clause  in  Magna  Charta,  were  not  in- 
tended to  restrain  in  any  way  the  legislative 
power  of  Parliament.  These  great  bulwarks  of 
English  liberty,  as  they  were  quite  properly 
called,  were  very  effective  in  shielding  the 
people  against  attacks  on  the  part  of  the  king, 
but  they  have  served  their  purpose,  and  now 
that  the  royal  authority  has  faded  to  a  shadow, 


82  ESSAYS   ON  GOVERNMENT. 

and  the  power  of  the  House  of  Lords  is  not 
much  more  substantial,  their  usefulness  has 
passed,  and  in  the  presence  of  democracy  they 
have  become  as  obsolete  as  armor  in  the  face 
of  cannon.  These  institutions  have  stamped 
one  very  important  mark  upon  English  democ- 
racy. They  have  secured  to  a  great  extent  the 
absence  of  administrative  government.  They 
have  made  England  a  country  of  laws,  and,  by 
preventing  the  growth  of  large  discretionary 
authority  among  officials,  they  have  made  it 
impossible  for  a  dictator  to  usurp  power  in  the 
name  of  the  people.  But  they  have  put  no 
check  upon  legislation.  To  so  great  an  extent 
is  this  true,  that  private  property  in  England 
is,  on  the  whole,  less  secure  from  attack  on  the 
part  of  the  government  to-day  than  it  was  at 
the  time  of  the  Stuarts. 

An  opinion  was  delivered  some  years  ago  by 
an  American  judge  in  one  of  the  Western 
States,  in  which  this  startling  sentence  occurs : 
"  Even  in  Great  Britain,  esteemed  to  have  the 
most  liberal  constitution  on  the  Eastern  conti- 
nent, Magna  Charta  is  not  of  sufficient  potency 
to  restrain  the  action  of  Parliament,  as  their 
judiciary  does  not,  as  a  settled  rule,  bring  laws 
to  the  test  of  its  provisions.  Laws  are  there 
overthrown  only  occasionally  by  judicial  con- 
struction.    Such  a  thing,  indeed,  as  deciding  a 


DEMOCRACY  AND  THE  CONSTITUTION.      83 

law  or  royal  decree  unconstitutional,  in  an  ab- 
solute government  is  unknown.  Hence  the 
oppression  of  the  people."1  But  ridiculous  as 
this  scream  of  the  American  eagle  certainly  is, 
it  may  not  be  very  long  before  we  can  say  with 
truth  :  Hence  the  oppression  of  the  minority  ! 

The  Americans  are  the  only  people  who  have 
set  themselves  to  work  to  solve  the  problem  of 
restraining  the  power  of  the  majority,  and 
this  they  have  done  deliberately,  although  the 
circumstances  of  the  country  and  the  historical 
traditions  of  the  race  have  helped  them  very 
much  in  their  task.  The  Constitution  of  the 
United  States  contained  at  first  no  bill  of 
rights,  and  to  many  people  this  appeared  a 
serious  defect.  They  had  been  accustomed  to 
look  on  Magna  Charta,  the  Petition  of  Right, 
and  the  Bill  of  Rights  as  the  groundwork  of 
English  liberty,  and  they  had  a  feeling,  some- 
what vague  perhaps,  that  without  ,a  similar 
declaration  they  would  be  exposed  to  tyranny. 
Hamilton  met  their  objections  in  "  The  Feder- 
alist" (No.  84)  by  saying  :  "  Bills  of  rights  are, 
in  their  origin,  stipulations  between  kings  and 
their  subjects,  abridgments  of  prerogative  in 
favor  of  privilege,  reservations  of  rights  not 
surrendered  to  the  prince.  ...  It  is  evident, 
therefore,  that  according  to  their  primitive  sig- 

l  Perkins,  J.,  in  Beebe  v.  The  State,  6  Ind.  501. 


84  ESSAYS    ON  GOVERNMENT. 

nification,  they  have  no  application  to  constitu- 
tions professedly  founded  upon  the  power  of 
the  people,  and  executed  by  their  immediate 
representatives  and  servants.  Here,  in  strict- 
ness, the  people  surrender  nothing ;  and  as 
they  retain  everything,  they  have  no  need  of 
particular  reservations."  He  pointed  out,  in 
short,  the  unquestionable  fact  that  without  a 
Bill  of  Rights  the  Americans  were  in  the  same 
position  as  the  English  were  with  ono.  But  his 
opponents  answered  that  wherever  power  was 
placed  it  was  liable  to  be  abused,  and  that  just 
as  Magna  Charta  and  the  Bill  of  Rights  had 
been  a  shield  to  the  English  against  their  king, 
so  they  might  be  a  shield  to  the  Americans 
against  the  government.  In  those  days,  it  was 
not  executive  tyranny  that  men  chiefly  dreaded, 
but  oppression  by  the  legislature.  The  attempt 
of  the  legislatures  in  several  states  to  hinder 
the  collection  of  private  debts,  or  to  cancel  them 
in  part  by  the  issue  of  paper  money,  was  a 
symptom  of  a  tendency  which  alarmed  the  more 
serious  members  of  the  community,  and  Jef- 
ferson expressed  a  prevalent  opinion  when  he 
wrote:  "The  executive,  in  our  governments, 
is  not  the  sole,  it  is  scarcely  the  principal,  ob- 
ject of  my  jealousy.  The  tyranny  of  the  legis- 
latures is  the  most  formidable  dread  at  present, 
and  will  be  for  many  years." 


DEMOCRACY  AND   THE  CONSTITUTION.       85 

Several  of  the  provisions  in  the  English  Bill 
of  Rights  —  those  concerning  cruel  and  un- 
usual punishments,  and  the  right  of  all  citi- 
zens to  bear  arms,  to  petition  the  government, 
and  to  be  tried  by  jury  —  could  easily  be  ap- 
plied to  Congress,  and  amounted  to  a  prohibi- 
tion of  certain  definite  classes  of  legislation ; 
but  the  provision  borrowed  from  the  famous 
clause  of  Magna  Charta  and  put  in  the  form, 
"  No  person  shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law,"  lost 
its  whole  meaning  when  used  with  reference 
to  a  legislative  body.  The  object  of  the  char- 
ter signed  by  King  John  was  simple  enough. 
The  barons,  incensed  by  the  king's  lawless- 
ness, arose  in  arms,  and  catching  him  defense- 
less at  Runnymede,  extorted  from  him  a  prom- 
ise to  keep  the  law  in  future.  This  was  the 
practical  side  of  the  Great  Charter.  .  Philo- 
sophically it  implied  that  the  king  was  to  ex- 
ercise no  legislative  power,  and  in  fact  an 
agreement  that  no  man  should  be  disseized, 
outlawed,  or  destroyed,  except  according  to 
the  judgment  of  his  peers  or  the  law  of  the 
land,  would  afford  no  protection  to  the  vassals 
of  the  crown  if  John  had  power  to  change 
that  law  to  suit  his  pleasure.  By  "  the  law  of 
the  land  "  the  barons  meant  the  existing  law, 
which  could  not  be  changed  without  their  own 


86  ESSAYS   ON  GOVERNMENT. 

consent.  Entirely  misapprehending  the  force 
of  this  provision,  or  rather  having  no  distinct 
idea  of  its  effect,  and  regarding  it  very  much 
as  the  Italian  does  the  talisman  which  keeps 
off  the  evil  eye,  the  American  statesmen  of 
a  hundred  years  ago  put  it  into  the  Bill  of 
Rights,  and  left  it  as  a  puzzle  for  posterity  to 
solve.  It  is  clear  that  "  due  process  of  law  " 
was  not  intended  to  include  every  process  which 
the  legislature  chose  to  make  law,  because,  if 
so,  the  provision  would  be  nugatory ;  and  it  is 
equally  clear  that  the  phrase  was  not  meant, 
like  its  prototype  in  the  Great  Charter,  to  refer 
only  to  existing  law,  or  to  law  established  by 
some  body  other  than  the  one  whose  power  the 
provision  was  designed  to  restrain,  because  in 
that  case  the  legislature  would  be  forbidden  to 
make  any  change  in  the  law  to  the  detriment 
of  individuals,  and  as  there  are  few  changes  in 
the  law  which  do  not  affect  private  rights  more 
or  less,  it  would  virtually  be  deprived  of  legis- 
lative power  altogether.  Placed  between  the 
horns  of  this  dilemma,  th-  courts  have  been 
obliged  to  find  a  construction  for  the  clause 
which  leaves  to  the  legislature  a  reasonable 
amount  of  discretion,  and  yet  prevents  vexa- 
tions interference  with  vested  rights,  and  thus, 
quite  without  precedent  in  the  history  of  the 
world,  a    body  of  constitutional   law  has  been 


DEMOCRACY  AND  THE   CONSTITUTION.       87 

formed  which  is  not  yet  completely  crystal- 
lized, but  is  being  daily  shaped  by  the  deci- 
sions of  the  courts.  In  this  way  the  blunder 
made  in  searching  for  restraints  upon  legisla- 
tive power  has  turned  out  a  most  fortunate 
one ;  for  the  provision  in  question,  together  with 
those  which  forbid  the  taking  of  private  prop- 
erty for  public  use  without  just  compensation, 
and  the  enactment  of  laws  impairing  the  obliga- 
tion of  contracts,  lies  at  the  foundation  of  all 
constitutional  protection  of  private  rights  in  the 
United  States. 

This  example  will  suffice  to  prove  that  the 
founders  of  the  American  government,  in  an- 
nexing to  their  various  constitutions  Bills  of 
Rights,  had  not  always  a  definite  idea  of  the 
effect  of  the  provisions  they  adopted,  but  the 
object  they  proposed  to  themselves  was  per- 
fectly clear.  They  intended  to  restrain  the 
impulse  of  popular  majorities,  and  more  espe- 
cially to  prevent  the  legislature  from  becoming 
despotic  and  tyrannous.  In  order  to  accomplish 
this  result  they  did  not  rely  on  Bills  of  Rights 
alone,  but  made  use  of  many  other  devices, 
which  deserve  consideration.  For  the  sake, 
of  treating  the  subject  more  broadly,  it  may 
be  worth  while  to  inquire  what  are  the  es- 
sential features  of  a  system  which,  with  equal- 
ity and  democracy,  shall   attempt  to   maintain 


88  ESSAYS  ON  GOVERNMENT. 

individual  rights,  and  see,  as  we  proceed,  how 
far  these  features  are  to  be  found  in  the  Ameri- 
can government.  It  is  not,  of  course,  to  be 
supposed  that  all  those  things  in  the  political 
system  of  the  United  States  which  helped  to 
put  a  curb  on  the  majority  were  deliberately 
planned  by  the  framers  of  the  Constitution  for 
that  purpose.  Many  expedients  were  forced 
upon  them  by  the  political  condition  of  the 
country,  and  the  working  of  the  others  was 
only  partially  foreseen  ;  but  it  is  easy,  on  the 
other  hand,  to  give  them  too  little  credit  for 
originality  and  forethought.  For  a  long  time 
there  existed  in  America  a  superstition  which 
attributed  to  these  men  a  sort  of  omniscience 
in  matters  of  statesmanship ;  but  the  pendulum 
has  now  swung  in  the  opposite  direction,  and 
it  is  the  habit,  particularly  among  certain  Eng- 
lish critics,  to  treat  the  American  institutions 
as  a  mere  growth,  a  development  of  the  British, 
political  system,  in  which  deliberate  creation 
had  but  little  share.  No  doubt  some  of  the 
most  salient  features  of  the  American  govern- 
ment, such  as  the  single  executive  and  the 
two  houses  of  the  legislature,  were  suggested 
by  similar  institutions  in  the  mother  country ; 
yet  even  these  were  by  no  means  simply  copied 
or  accepted  under  the  blind  influence  of  asso- 
ciation   or   precedent,   and   in   the    convention 


DEMOCRACY  AND   THE  CONSTITUTION.       89 

which  framed  the  Constitution  of  the  United 
States  they  were  carefully  discussed,  and 
adopted  on  account  of  a  distinct  belief  in  their 
utility. 

A  mere  sentiment  of  respect  for  traditional 
principles,  or  for  private  rights,  may  for  a  time 
have  some  effect  in  protecting  a  minority  from 
hostile  legislation,  but  in  a  progressive  country, 
where  public  affairs  are  fearlessly  discussed,  it 
will  not  long  stand  the  strain  to  which  it  is 
constantly  subjected ;  and  even  if  this  senti- 
ment is  embodied  in  a  formal  document,  set  up 
as  a  caution  to  the  government,  and  as  a  code 
of  moral  precepts  which  ought  to  be  followed, 
there  will  be  no  difficulty  in  finding  most  ex- 
cellent reasons  for  violating  its  principles. 
Danger  to  the  state,  imperative  political  neces- 
sity, etc.,  are  excuses  which  commend  them- 
selves readily  to  any  one  who  desires  a  change. 
The  refusal  by  the  possessor  of  political  power 
to  make  use  of  it,  requires  the  exercise  of  great 
self-restraint;  and  the  art  of  framing  a  limited 
government,  like  the  art  of  civilization  itself, 
consists  not  only  in  developing  the  habit  of 
self-control,  but  even  more  in  removing  temp- 
tation, and  in  making  that  self-control  as  little 
irksome  and,  indeed,  as  little  conscious  as  pos- 
sible. 

Now  there  are  three  devices  which  are  capa- 


90  ESSAYS  ON   GOVERNMENT. 

ble  of  promoting  this  result:  first,  an  arrange- 
ment such  that  no  organized  political  body  can 
feel  that  the  laws  depend  solely  upon  its  own 
will,  —  can  feel,  in  other  words,  that  it  has 
power  to  do  whatever  it  pleases ;  second,  the 
creation  of  several  independent  political  bodies, 
each  of  which  is  restrained  by  the  presence  of 
the  others ;  and,  third,  a  process  by  which 
every  possessor  of  political  power  can  be  made 
amenable  to  some  final  authority  which  will 
prevent  him  from  overstepping  the  bounds 
prescribed  for  his  action.  Neither  of  these 
three  things  would  stand  long  by  itself,  for  they 
are  dependent  each  upon  the  others,  and  form 
parts  of  one  complete  system,  but  for  the  sake 
of  convenience  and  clearness  it  may  be  well  to 
consider  them  separately. 

The  first  device  I  have  mentioned  for  facili- 
tating political  self-control  is  an  arrangement 
such  that  no  organized  public  body  can  have  a 
sense  of  its  own  omnipotence,  and  in  a  democ- 
racy this  means  that  the  mass  of  the  people, 
in  which  final  and  irresponsible  power  resides, 
must  not  be  an  organized  body ;  must  not,  in 
other  words,  be  in  the  habit  of  expressing  its 
will  by  transacting  public  business  directly,  as 
was  the  case  in  Athens.  It  means  also  that 
there  must  exist  no  single  body  of  representa- 
tives which  has  absolute  authority  to  express 


DEMOCRACY  AND  THE   CONSTITUTION.       91 

the  popular  will.  It  implies,  in  short,  a  sys- 
tem which  will  make  it  impossible  for  a  desire 
to  violate  those  fundamental  principles  which 
it  is  the  object  of  the  Constitution  to  maintain, 
to  organize  and  manifest  itself  as  a  popular  de- 
mand, or  which  will  make  this  so  difficult  that 
it  will  happen  only  after  the  matter  has  been 
long  considered,  and  the  majority  in  favor  of  it 
is  overwhelming.  For  this  purpose  political 
power  must  be  divided  among  several  bodies, 
no  one  of  which  represents  the  sovereign  peo- 
ple, or  has  authority  to  express  the  popular 
will,  except  to  a  limited  extent.  Beyond  the 
power  intrusted  to  these  bodies  the  expres- 
sion of  the  popular  will  ought  to  involve  an 
elaborate  process,  and  be  surrounded  with  con- 
siderable formality,  so  that  a  change  in  the 
laws,  which  does  not  lie  within  the  scope  of 
ordinary  legislation,  may  not  take  place  with- 
out the  greatest  possible  amount  of  discussion 
and  reflection.  Like  the  bulkheads  in  a  ship, 
which  keep  a  loose  cargo  steady  while  the  ves- 
sel is  rolling,  and  prevent  it  from  shifting  to 
one  side,  these  divisions  of  political  power  are 
very  effective  in  preventing  public  opinion  from 
surging  violently  in  one  direction,  and  destroy- 
ing the  equilibrium  of  the  state.  The  object 
of  such  a  system  is,  as  I  have  said,  to  hinder 
any  development  or  expression  of  popular  desire 


92  ESSAYS  ON  GOVERNMENT. 

except  within  certain  prescribed  limits ;  and  in 
the  United  States,  where  these  principles  have 
been  applied,  it  is  surprisingly  difficult  to  find 
out  the  opinion  of  the  American  people  upon 
a  matter  with  which  Congress  has  no  power 
to  deal.  Take,  for  example,  the  subject  of  a 
national  law  regulating  rent,  and  suppose  a  real 
demand  for  it.  Such  a  law  could  be  enacted 
only  by  means  of  an  amendment  to  the  Federal 
Constitution,  and  this  requires  the  consent  of 
three  quarters  of  the  States.  But  how  can  it 
be  known  whether  that  number  of  States  are 
in  favor  of  the  measure  or  not  ?  They  have  no 
common  assembly  in  which  their  opinions  on 
changes  in  the  Constitution  are  expressed. 
Congress  can  proclaim  its  own  views,  but  Con- 
gress has  no  authority  to  speak  on  the  subject 
either  for  the  nation  or  for  the  States,  nor 
would  any  vote  it  might  pass  be  regarded  as 
an  expression  of  popular  will  on  a  matter  not 
legally  within  its  competence.  The  people  of 
the  several  States  possess  no  common  organ 
for  making  their  opinions  upon  such  a  subject 
known,  and  the  only  way  to  discover  their 
wishes  is  to  propose  a  definite  amendment  to 
the  Constitution,  and  see  whether  it  is  rati- 
fied by  the  required  number  of  States ;  a  pro- 
cess which  is  so  cumbrous  and  uncertain  that  it 
is  sure  never  to  be  attempted  unless  the  amend- 


DEMOCRACY  AND  THE  CONSTITUTION.       93 

meiit  is  almost  universally  demanded,  and  its 
adoption  is  virtually  beyond  a  doubt.  The 
same  thing  is  true  to  some  extent  in  the  sepa- 
rate States.  In  almost  all  of  them  an  amend- 
ment to  the  Constitution  of  the  State  can  be 
adopted  only  by  popular  vote,1  and  the  people 
have  no  means  of  expressing  their  views  upon 
the  propriety  of  an  amendment  until  it  is  sub- 
mitted to  them  at  the  polls,  for  the  distinction 
between  a  constitution  and  ordinary  statute 
law  is  so  clearly  recognized  that  a  vote  of  the 
legislature  which  touches  the  former  is  not  re- 
garded as  at  all  equivalent  to  an  expression  of 
the  popular  will. 

In  order  to  make  self-restraint  as  easy  and 
unconscious  as  possible,  it  is  important  that  the 
people  should  not  be  constantly  in  the  habit  of 
organizing  and  passing  laws  directly ;  and  it  is 
no  less  important,  as  I  have  pointed  out,  that 
political  power  should  be  divided  among  sev- 
eral bodies,  no  one  of  which  has  authority  to 
declare  the  popular  will,  except  within  certain 
defined  limits.  The  division  of  power  in  the 
United  States  is  twofold  ;  and  while  other  prin- 

1  In  many  of  the  States  a  general  revision  of  the  Constitution 
can  be  undertaken  by  a  convention  specially  elected  for  that  pur- 
pose, after  the  question  of  calling  the  convention  has  been  decided 
in  the  affirmative  by  popular  vote,  and  in  some  of  these  cases  the 
work  of  the  convention  need  not  be  submitted  to  tlw  people  for 
ratification. 


94  ESSAYS   ON  GOVERNMENT. 

ciples  of  division  can  readily  be  imagined,  the 
system  in  use  here  has  the  advantage  of  hav- 
ing stood  the  test  of  actual  experiment. 

In  the  first  place,  power  is  divided  territori- 
ally, if  I  may  be  allowed  so  barbarous  an  ex- 
pression ;  that  is,  it  is  placed  partly  in  the 
hands  of  the  central  or  federal  government, 
whose  authority  is  absolute  within  the  limits 
prescribed  for  its  action,  and  partly  in  those  of 
the  local  or  state  governments,  which  are  also 
supreme  in  the  sphere  reserved  for  them, — 
matters  of  more  common  interest  being  allot- 
ted to  the  federal  government;  those  whose 
bearing  is  comparatively  local,  to  the  several 
States.  The  importance  of  such  a  division  of 
power,  in  preventing  any  one  political  body 
from  wielding  the  whole  force  of  the  nation,  is 
obvious ;  and  although  it  was  not  deliberately 
adopted  by  the  people  for  the  sake  of  limiting 
the  power  of  their  own  representatives,  but 
arose  from  the  jealousies  of  the  original  States, 
and  from  their  dread  of  submitting  themselves 
unconditionally  to  a  common  government,  yet 
it  has  become  an  integi'al  part  of  the  polity  of 
the  nation,  and  is  as  necessaiy  for  restraining 
popular  impulse  as  the  other  principle  of  divi- 
sion which  we  are  about  to  consider. 

In  the  second  place,  the  power  of  each  gov- 
ernment, whether  state  or  federal,  is  distrib- 


DEMOCRACY  AND   THE  CONSTITUTION.       95 

uted  among  several  representative  bodies.  It 
is  separated  into  legislative  and  executive  (a 
distinction  which  deserves  a  more  philosoph- 
ical study  than  it  has  yet  received) ;  and  the 
legislative  power  is  vested  partly  in  two  cham- 
bers which  possess  the  entire  right  of  initiative, 
and  partly  in  a  single  chief  magistrate  who  is 
intrusted  with  a  qualified  veto.  The  executive 
power,  on  the  other  hand,  is  commonly  said  to 
be  wholly  in  the  hands  of  the  chief  magistrate, 
but  as  a  matter  of  fact  this  also  is  divided  to  a 
very  great  extent.  In  the  federal  government 
it  is  shared  in  large  measure  by  the  Senate ; 
and  in  many  of  the  States  it  is  not  only  very 
much  under  the  control  of  a  council  or  senate, 
but  a  considerable  portion  of  it  is  intrusted  to 
permanent  boards  or  commissions,  which  are 
only  veiy  partially  subject  to  the  authority  of 
the  governor,  —  a  state  of  things  which  is  in 
some  degree  true  of  the  national  government 
also.  In  many  of  the  States,  indeed,  a  number 
of  the  great  executive  officers,  such  as  the  at- 
torney-general and  the  secretary  and  treasurer, 
are  elected  by  the  people,  and  are  in  conse- 
quence almost  completely  independent. 

It  will  perhaps  be  noticed  that,  in  speaking 
of  the  separation  of  powers,  the  judiciary  has 
been  omitted.  This  is  because  the  courts, 
while  exercising  a  very  great  influence  upon 


96  ESSAYS  ON  GOVERNMENT. 

the  course  of  events,  and  wielding  in  reality  a 
vast  authority,  do  not  possess  political  power  in 
at  all  the  same  sense  as  the  legislature  and  the 
executive.  Their  acts  are  not  arbitrary,  like 
those  of  the  other  departments  of  the  govern- 
ment ;  and  in  making  use  of  their  most  exalted 
function,  that  of  putting  a  construction  upon 
the  Constitution,  they  attempt  to  carry  out  the 
popular  will  only  so  far  as  it  has  found  its  ex- 
pression in  the  instrument  they  interpret. 

The  second  contrivance  I  have  referred  to, 
as  an  aid  to  self-control  on  the  part  of  the  sov- 
ereign people,  is  the  creation  of  sevei'al  inde- 
pendent political  bodies,  each  of  which  is  re- 
strained by  the  presence  of  the  others.  The 
division  of  powrer  would  clearly  be  a  mere  sham 
if  the  possessors  of  the  several  portions  of  it 
were  not  independent ;  if  one  of  them,  for  ex- 
ample, could  overawe  or  coerce  the  others ; 
.and  in  order  that  each  one  may  feel  that  its 
power  is  limited,  it  is  essential  that  they  should 
all,  actually  as  well  as  legally,  enjoy  complete 
liberty  of  action.  In  this  case,  like  individ- 
uals in  social  life,  they  exercise  a  strong  re- 
straining influence  upon  one  another,  which, 
tends  to  prevent  any  one  of  them  from  commit- 
ting a  breach  of  conventionality ;  a  breach,  that 
is,  of  the  rules  of  conduct  which  the  others 
consider  it  proper  to  observe.     The  existence, 


DEMOCRACY  AND  THE  CONSTITUTION.       97 

in  other  words,  of  so  many  political  bodies,  all 
obeying  the  principles  of  constitutional  law, 
tends  to  form  and  preserve  a  public  moi*ality 
on  the  subject  which  helps  to  prevent  viola- 
tions of  those  principles.  Now  the  mere  legal 
division  of  power  will  by  no  means  secure  the 
independence  of  the  bodies  among  which  it  is 
distributed.-  In  England,  the  crown  still  pos- 
sesses by  law  almost  the  whole  executive  au- 
thority, and  no  one  has  ever  doubted  that 
a  statute  to  be  valid  must  pass  the  House 
of  Lords,  and  receive  the  royal  assent,  but 
in  reality  the  royal  power  has  vanished,  and 
the  peers  are  unable  to  resist  the  House  of 
Commons.  The  immediate  cause  of  this  is  to 
be  found,  it  is  true,  in  the  system  of  a  re- 
sponsible ministry ;  but  there  can  be  no  doubt 
that  if  such  an  institution  had  never  grown 
up,  some  other  method  of  bringing  about  the 
same  result  would  eventually  have  been  de- 
vised, because  hereditary  personal  government, 
whether  by  a  monarch  or  a  privileged  aristoc- 
racy, has  long  ceased  to  be  possible  in  Great 
Britain. 

In  a  nation  composed  of  different  political 
classes  or  estates,  each  of  which  is  in  itself  a 
source  of  real  power,  an  effective  division  of 
political  authority  is  natural  and  easy ;  but 
where  the  people  is  the  sole  political  element, 


98  ESSAYS  ON  GOVERNMENT. 

it  is  necessary  to  make  an  artificial  balance  of 
independent  forces,  and  this  can  be  done  only 
by  giving  to  each  of  the  public  bodies  among 
which  power  is  divided  a  popular  basis,  so  that 
every  one  of  them  may  be  to  some  extent  a 
representative  of  the  sovereign  people.  It  is 
also  necessary  that  eacli  of  these  bodies  should 
derive  its  authority  from  an  independent  source ; 
for  if  one  of  them  were  appointed  or  elected 
by  another,  it  could  not  fail  to  be  very  much 
under  the  control  of  the  body  to  which  it  owed 
its  power.  If  the  President  of  the  United 
States,  for  example,  were  elected  by  Congress, 
he  would  be  unable  to  maintain  his  indepen-\ 
dence  in  face  of  the  houses,  but  under  the  present 
system  he  is  as  truly  the  representative  of  the 
sovereign  people  as  Congress  itself.  Andrew 
Jackson,  indeed,  habitually  assumed  for  himself 
a  sort  of  monopoly  of  the  privilege  of  repre- 
senting the  masses ;  and  although  later  presi- 
dents have  been  unable  to  perpetuate  such  a 
claim,  the  veto  has  never  ceased  to  be  freely 
exercised,  and,  strange  to  say,  the  use  of  it  is  in 
most  cases  highly  popular.  It  is  not  necessary 
that  every  person  to  whom  authority  is  in- 
trusted should  be  elected  directly  by  popu- 
lar vote,  but  it  is  essential  that  he  should  not 
be  chosen  by  a  body  whose  power  he  is  ex- 
pected  to    counterbalance.     This,   however,   is 


DEMOCRACY  AND  THE  CONSTITUTION.       99 

merely  a  negative  precaution,  and  will  not  by 
itself  insure  either  real  independence,  or  that 
divergence  in  point  of  view  which  is  requisite 
for  an  effective  division  of  power.  To  obtain 
this  result,  a  delicate  adjustment  of  political 
forces  is  necessary,  and  there  is  no  feature  of 
the  American  government  which  shows  more 
ingenuity  and  skill  than  the  contrivances  which 
prevent  the  different  representative  bodies  from 
being  mere  fac- similes  of  each  other,  and  at 
the  same  time  preserve  their  equality  in  point 
of  power.  In  this  matter,  the  success  of  the 
framers  of  the  Constitution  probably  exceeded 
their  expectations,  for  it  is  said  to  have  been 
long  believed  that  the  Senate  of  the  United 
States,  which  began  its  career  as  an  assembly 
decidedly  inferior  in  influence  to  the  House 
of  Representatives,  would  gradually  lose  much 
of  the  authority  it  possessed ;  but  it  turned 
out  that  the  longer  term  of  office,  the  share 
of  executive  power,  and  the  fact  that  a  sena- 
tor represented  an  entire  community,  while  a 
member  of  the  House  stood  for  an  unorganized 
strip  of  territory,  were  enough  to  induce  men 
of  eminence  and  party  leaders  to  prefer  the 
smaller  body,  and  thus  the  second  chamber  has 
not  only  been  raised  to  a  position  of  equality 
with  the  first,  but  has  shown  itself  at  times 
decidedly  the    superior.      The  Federal  Senate 


100  ESSAYS    ON  GOVERNMENT. 

has  not  only  achieved  greatness  for  itself,  but 
it  has  reflected  a  part  of  its  glory  upon  the 
second  chambers  of  the  several  States,  although 
these  bodies  possess  in  general  few  of  the  ad- 
vantages which  have  made  the  success  of  their 
prototype,  for  it  is  no  doubt  due  in  large  meas- 
ure to  this  borrowed  lustre  that  a  transfer  from 
the  House  to  the  Senate  of  a  State  is  looked 
upon  as  a  promotion,  — a  state  of  things  neces- 
sary in  a  democratic  country  to  prevent  the 
smaller  body  from  occupying  a  distinctly  in- 
ferior position. 

There  is  another  element  which  is  not  with- 
out influence  in  maintaining  the  independence 
of  the  bodies  among  which  power  is  divided, 
but  which  has  an  especial  importance  in  rela- 
tion to  what  I  have  termed  the  territorial  divi- 
sion of  power ;  and  that  is,  the  corporate  senti- 
ment. The  real  independence  of  the  state 
governments  is  due  to  the  fact  that  each  of 
them  has  its  own  history,  its  own  traditions 
and  associations,  its  own  government  and  laws, 
and  is,  in  short,  a  separate  community.  It 
would  be  impossible  to  establish  a  federal  re- 
public in  France  with  the  departments  as  con- 
stituent members,  because  the  French  depart- 
ments are  not  communities  with  a  feeling  of 
common  interests  and  common  ties,  but  mere 
geographical  divisions,  and  the  central  power  in 


DEMOCRACY  AND   THE   CONSTITUTION.    101 

such  a  federation  would  sweep  aside  any  local 
opposition  to  its  will  with  perfect  ease.  Com- 
munities cannot  be  manufactured  by  law. 
They  are  the  result  of  a  slow  growth,  but  their 
existence  is  essential  to  any  real  limitation  upon 
the  arbitrary  will  of  the  central  government; 
for  without  the  sentiments  which  they  call  out, 
the  local  authorities  can  never  possess  that 
spirit  of  self-reliance  which  is  an  indispensable 
factor  in  any  true  division  of  power  between 
the  nation  and  its  parts. 

The  third  and  last  thing  I  have  mentioned, 
as  an  assistance  to  popular  self-control,  is  a 
process  by  which  every  possessor  of  political 
power  can  be  made  amenable  to  some  final 
authority  which  will  prevent  him  from  over- 
stepping the  bounds  prescribed  for  his  action. 
This  is  a  necessary  feature  in  any  effective 
system  of  dividing  power,  because  without  it 
there  is  nothing  to  hinder  one  branch  of  the 
government  from  gradually  extending  its  au- 
thority, and  encroaching  on  the  others,  until 
these  become  so  enfeebled  as  to  be  unable  to 
resist,  and  then  all  separation  or  limitation  of 
power  is  at  an  end.  The  division  of  political 
authority,  and  the  control  of  public  officers 
by  some  independent  tribunal,  are,  indeed,  cor- 
relatives, neither  of  which,  except  under  very 
peculiar  conditions,  can  long  exist  without  the 


102  ASSAYS   ON   GOVERNMENT. 

other.  In  bis  "  Democracy  in  America  "  De 
Tocqueville  speaks  of  the  great  number  of  local 
officers  in  the  New  England  township,  no  one 
of  whom  is  subordinate  to  another ;  and  he 
remarks  that  the  responsibility  to  an  official 
superior,  to  which  his  countrymen  were  accus- 
tomed in  France,  is  replaced  by  the  liability 
to  civil  suit  or  criminal  prosecution  before 
the  ordinary  courts  of  law.  This,  he  sa}rs,  to- 
gether with  the  frequent  elections,  is  relied 
upon  to  prevent  the  town  officers  from  being  ar- 
bitrary or  negligent ;  and  he  might  have  added 
that  it  was  the  very  fact  that  political  power 
was  divided  into  so  many  fragments,  so  that 
each  officer  stood  alone,  responsible  to  no  one, 
and  therefore  protected  by  no  one,  which  made 
it  easy  to  bring  him  into  court  and  compel  him 
to  obey  the  common  law. 

It  is  important  that  the  tribunal  by  which 
the  limits  of  the  various  powers  in  the  State 
are  determined  should  be  swayed  as  little  as 
possible  by  the  political  passions  of  the  day  ; 
that  it  should  be  impartial,  and  base  its  deci- 
sions upon  principle  and  precedent;  for  if  not, 
it  would  be  in  the  same  position  as  any  other 
political  body,  and  would  in  its  turn  require  to 
be  watched  and  restrained  from  exceeding  its 
proper  functions.  It  is  also  essential  that  this 
tribunal  should  not  be  brought  into  direct  con- 


DEMOCRACY  AND    THE  CONSTITUTION.    103 

flict  with  the  government,  because  it  would 
certainly  be  beaten  in  the  struggle,  and  shorn 
of  its  power ;  and  it  is  no  less  necessary  to  pre- 
vent questions  about  the  limitations  of  power 
from  arising  in  such  a  form  that  the  whole 
weight  of  the  State  is  on  one  side,  and  the 
individual  on  the  other.  The  American  has 
attempted  to  satisfy  all  these  requirements  by 
confiding  the  duty  of  deciding  questions  involv- 
ing the  limitations  of  the  different  branches  of 
the  government  to  the  courts  of  law.  By  this 
means  he  has  secured  a  tribunal  which  is  im- 
partial in  a  high  degree,  and  decides  according 
to  fixed  rules.  He  has  also  made  it  difficult 
for  the  State  to  bring  a  pressure  to  bear  upon 
the  court  or  the  individual,  because  the  court 
settles  questions  concerning  the  limits  of  polit- 
ical power  as  it  does  other  points  of  law ;  that 
is,  it  decides  them  only  when  they  are  raised  in 
the  course  of  an  actual  suit  between  private 
persons,  or  between  parties  who  appear  before 
it  in  that  character.  By  this  means,  the  inter- 
pretation of  the  Constitution  has  been  taken  out 
of  politics,  as  far  as  possible,  while  the  princi- 
ples established  by  that  instrument  have  been 
put  on  the  same  footing  as  other  rules  applied 
by  the  courts,  and  made,  as  it  were,  a  part  of 
the  common  law.  At  the  same  time  the  Amer- 
ican system  diminishes  the  danger  of  collision 


104  ESSAYS   ON  GOVERNMENT. 

between  the  different  political  bodies  among 
which  power  is  distributed,  because  these  bodies 
are  not  brought  into  direct  contact,  but  act 
each  in  its  own  way  directly  on  the  people,  the 
courts  regulating  conflicts  of  authority  as  they 
arise.  If  Congress  passes  a  law  which  ex- 
ceeds the  powers  granted  to  it,  the  States  — 
now  that  the  doctrine  of  nullification  is  dead 
—  do  not  raise  the  question  of  constitutional- 
ity, and  contend  with  the  national  government, 
but  the  law  goes  quietly  into  the  statute-book, 
and  any  person  who  feels  aggrieved  by  it  brings 
it  before  the  courts,  as  he  would  the  by-law  of 
a  railroad  company  the  validity  of  which  he 
wanted  to  test. 

The  American  form  of  government,  with  the 
immense  power  it  gives  to  the  courts,  could  not 
exist  among  a  people  whose  reverence  for  law 
and  whose  love  of  litigation  were  not  very 
great;  nor  could  it  endure  without  a  provision 
for  amendment,  which  acts  as  a  safety  valve 
and  allows  the  steam  to  escape  when  the  pres- 
sure becomes  too  great.  The  system  would 
not  be  possible,  moreover,  if  it  did  not  rest  on 
a  popular  basis,  for  no  merits  it  might  possess 
would  have  preserved  it  if,  instead  of  being 
established  by  the  people,  it  had  been  a  relic  of 
an  aristocratic  state  of  society.  The  French 
publicists  speak  of  the  advantage  possessed  by 


DEMOCRACY  AND   THE  CONSTITUTION.    105 

a  republic  in  dealing  with  insurrections,  saying 
that  it  can  put  them  down  without  arousing 
the  sense  of  oppression  which  would  be  caused 
by  the  same  acts  on  the  part  of  a  monarchy ; 
and  this  they  ascribe  to  the  fact  that  a  republic 
is  the  government  of  the  people,  and  its  acts 
are  the  acts  of  the  people  themselves.  Now 
the  same  principle  applies  to  the  authority  of 
the  American  court  in  constitutional  questions, 
because  a  legislature  which  passes  an  unconsti- 
tutional statute  is  usurping  power  over  the  peo- 
ple, and  the  court,  in  refusing  to  enforce  such  a 
statute,  is  giving  effect  to  the  popular  will.  In 
order,  therefore,  to  limit  the  power  of  the  legis- 
lature, and  maintain  the  authority  of  the  court, 
it  is  necessary  to  draw  a  sharp  line  between 
constitutional  and  other  laws,  and  to  make  it 
clear  that  the  former  embody  in  a  peculiar  de- 
gree the  wishes  of  the  people.  This  is  done 
very  thoroughly  in  America,  where  the  action 
of  the  legislature  is  sufficient  for  all  ordinary 
laws,  while  amendments  to  the  Federal  Consti- 
tution are  submitted  for  approval  to  the  sev- 
eral States,  and  changes  in  the  constitution  of 
a  State  require  almost  universally  a  vote  of  the 
citizens.  It  is  worthy  of  remark  that  the  Swiss 
institution  of  the  referendum,  while  practically 
lonjj  in  use  in  the  United  States  for  constitu- 
tional  matters,  would  be  quite  out  of  place  for 


106  ESSAYS   ON  GOVERNMENT. 

ordinary  laws,  because  it  would  obscure  the  dis- 
tinction on  which  the  whole  American  system 
rests,  and  for  this  reason  the  growing  tendency 
of  the  people  of  the  States  to  take  a  direct  part 
in  legislation  by  means  of  constitutional  amend- 
ments is  a  danger,  and  if  it  goes  too  far  will 
be  a  serious  injury,  to  our  system  of  govern- 
ment. 

Such  are  the  main  features  of  a  government 
which,  with  the  most  complete  acceptance  of 
democracy,  aims  at  the  protection  of  private 
rights.  No  institutions  can  shield  these  en- 
tirely from  attack,  because  the  number  of  rights 
which  can  be  effectually  protected  by  the  Con- 
stitution is  very  limited,  and  the  legislature 
must  always  retain  sufficient  power  to  disturb 
seriously  all  social  relations,  if  it  is  determined 
to  make  use  for  this  purpose  of  the  means  at 
its  command.  The  utmost  that  a  constitution 
can  be  expected  to  do  is  to  protect  directly  a 
small  number  of  vested  rights,  and  to  discour- 
nge  and  check  indirectly  the  growth  of  a  de- 
mand for  radical  measures.  How  far  the  insti- 
tutions of  the  United  States  have  succeeded  in 
doing  this  cannot  be  determined  with  precision, 
because  it  is  impossible  to  estimate  the  effect 
of  the  many  social  forces  which  have  influenced 
the  history  of  the  nation.  To  some  observers, 
it  may  seem  that,  in  spite  of  all  precautions, 


DEMOCRACY  AND   THE   CONSTITUTION.     107 

legislation  in  the  New  World  is  very  radical, 
and  interferes  seriously  with  the  liberty  of  the 
individual :  but  it  must  not  be  forgotten  that 
in  America  the  people  have  had  absolute  power 
in  their  hands  far  longer  than  in  any  European 
country ;  and  if  in  addition  to  this  it  is  consid- 
ered how  little  respect  the  American  has  for 
the  past,  and  how  ready  he  is  to  try  experi- 
ments, it  becomes  clear  that  his  constitutions 
must  have  exercised  upon  him  a  great  restrain- 
ing influence.  England,  France,  Germany,  and 
Switzerland  have  passed  laws  which  in  some 
ways  interfere  with  private  rights  more  than 
any  statutes  enacted  in  the  United  States,  and 
more  than  one  of  these  bids  fair  to  go  far  be- 
yond us  in  this  direction  before  many  years 
have  passed. 

Of  demagogism  in  America  there  is  no  lack, 
but  it  is  of  a  new  and  indigenous  kind,  and 
might  well  be  classified  as  the  demagogism 
of  ambiguous  phrases.  If  the  demagogue  ever 
gets  a  foothold  in  the  British  Isles,  he  will  be 
cut  after  the  well  -  known  Athenian  pattern. 
He  will  stir  up  class  against  class,  and  try  to 
tempt  the  crowd  to  bear  him  on  their  shoulders 
by  offering  to  scatter  among  them  the  money 
of  the  rich.  But  the  American  politician  re- 
sorts to  no  such  arts.  He  usually  attempts,  on 
the  contrarv,  to  conciliate  all   classes    °~A 


108  ESSAYS   ON  GOVERNMENT. 

lights  in  such  language  as  "  a  tariff  for  rev- 
enue only,  so  adjusted  as  to  protect  American 
industries  ;  "  an  expression  intended  to  win  the 
votes  of  the  free-traders  without  offending  the 
protectionists.  He  is  a  member  of  an  army 
of  office-seekers,  whose  warfare  is  not  directed 
against  private  rights,  or  the  interests  of  par- 
ticular classes,  or  even  against  what  might  be 
considered  crying  abuses,  but  is  waged  chiefly 
with  a  rival  army  of  office  -  seekers ;  and  the 
spoils  of  victory,  in  the  form  of  public  offices, 
are  not  distributed  among  the  mass  of  voters, 
or  common  soldiers  of  the  party,  but  are  al- 
lotted strictly  to  the  officers  who  have  organ- 
ized and  disciplined  these  voters,  —  to  persons 
more  vulgarly  called  the  workers  or  wire-pullers 
of  the  party.  The  result  is,  that  party  agi- 
tation in  America  does  not  in  general  involve 
any  threat  against  the  property  or  rights  of 
private  persons,  and  that  those  statutes  which 
may  be  classed  as  socialistic  rarely  find  a  place 
in  party  programmes,  and  are  not  carried  by 
party  votes.  This  state  of  things  is  not  an  ac- 
cident. It  is  the  natural  consequence  of  the 
political  system  of  the  United  States. 

Since  this  essay  was  written,  Mr.  Bryce's 
book  on  the  American  Commonwealth  has  ap- 
peared, in  which  a  chapter  entitled  Laissez-faire 


DEMOCRACY  AND  THE  CONSTITUTION.    109 

is  devoted  to  the  matter  we  are  considering. 
The  author  comes  to  the  conclusion  that  "  the 
new  democracies  of  America  are  just  as  eager 
for  state  interference  as  the  democracy  of 
England,  and  try  their  experiments  with  even 
more  light-hearted  promptitude.".  The  chapter 
is  followed  by  a  number  of  tables  intended  to 
prove  the  statement,  but  unfortunately  these 
were  not  compiled  by  Mr.  Bryce  himself,  and 
do  not  show  the  accuracy  and  thoroughness 
which  is  so  striking  in  the  rest  of  the  book. 
Their  defect  lies  in  the  fact  that  they  cover 
only  a  part  of  the  subjects  of  state  interference, 
and  do  not  extend  to  that  one  in  which  the  ten- 
dency of  recent  English  legislation  is  the  most 
marked. 

Owing  partly  to  the  condition  of  landed 
property  in  England,  partly  to  the  promi- 
nence of  Irish  questions,  and  partly  to  the 
ascendency  in  English  politics  which  the  Man- 
chester school  of  public  men  acquired  during 
the  struggle  for  the  repeal  of  the  Corn  Laws, 
and  retains  to  some  extent  even  at  the  present 
day,  shite  interference  in  Great  Britain  has 
been  far  more  pronounced  in  the  case  of  land 
than  in  that  of  manufactures.  The  influence 
of  the  last  of  these  causes  may  be  illustrated  by 
a  comparison  with  Germany,  where  Bismarck 
has  for  several  vears  been  at  war  with  the  man- 


110  ESSAYS  ON  GOVERNMENT. 

ufacturers,  and  rested  upon  the  support  of  the 
land-owners,  and  where  in  consequence  social- 
istic legislation  bears  almost  entirely  upon  me- 
chanical industry. 

It  may  be  doubted  whether  state  interfer- 
ence even  in  the  case  of  manufactures  has  gone 
so  far  in  America  as  in  England,  for  it  has  been 
confined  here  to^providing  what  employers  shall 
or  shall  not  do,  and  has  not  directly  touched 
the  liberty  of  the  workman;  but  in  England 
there  is  a  statute  (Factory  and  Workshop  Act, 
1883)  which  provides  not  only  that  the  owner 
of  a  white-lead  factory  shall  furnish  hot  and 
cold  water,  soap,  towels,  brushes,  separate 
rooms  for  meals,  and  acidulated  drinks,  but 
also  subjects  to  a  fine  any  person  employed  who 
refuses  to  make  use  of  these  things.  It  is  safe 
to  assert  that  the  liberty  of  the  free  American 
has  never  been  so  far  infringed  as  to  compel 
him  to  use  hot  water  and  soap  if  he  did  nut 
want  to  do  so.  If  we  take  into  account  statutes 
touching  land,  we  shall  see  that  Parliament  is 
not  only  more  inclined  to  socialistic  measures 
than  our  legislatures,  but  is  far  more  ready  to 
pass  laws  for  the  benefit  of  one  class  in  the 
community  at  the  expense  of  others.  One  of 
the  few  subjects,  indeed,  in  which  state  inter- 
ference has  gone  farther  in  America  than  in 
England  is  the  sale  of  l'quor ;  and  the  move- 


DEMOCRACY  AND   THE  CONSTITUTION.    Ill 

ment  in  this  case  is  purely  philanthropic,  and  is 
designed  to  protect  the  poor,  not  against  the 
rich,  but  against  themselves. 

A  short  review  of  a  few  of  the  more  promi- 
nent acts  recently  passed  by  Parliament  which 
affect  land  will  help   to  make  this  clear. 

The  Artisans  and  Laborers  Dwellings  Im- 
provement Act,  1875,  authorizes  certain  muni- 
cipal authorities  in  the  larger  towns  of  England 
and  Ireland  to  take  under  certain  conditions, 
and  on  paying  compensation  to  the  owner,  any 
district  covered  with  buildings  in  an  improper 
sanitary  condition,  tear  down  the  houses,  and 
sell  or  let  the  land,  for  the  purpose  of  carrying 
out  a  scheme  of  improvement.  A  similar  act 
was  passed  for  Scotland  in  the  same  year ;  and 
by  amendments  passed  at  various  times,  the 
authority  of  municipal  bodies  under  these  acts 
has  been  increased. 

But  Parliament  has  gone  even  farther  in  the 
same  path  in  a  series  of  laws  of  which  the 
most  striking  is  the  Housing  of  the  Working 

o  O  o 

Classes  Act,  1885.  This  statute,  which  applies 
to  the  whole  of  the  United  Kingdom,  extends 
the  operation  of  an  act  of  1851,  and  under  cer- 
tain conditions  empowers  local  authorities,  ur- 
ban and  rural,  when  of  opinion  that  more  ac- 
commodation is  necessary  for  the  working 
classes,  to  buy  land  for  that  purpose,  or  take  it 


112  ESSAYS  ON  GOVERNMENT. 

on  paying  compensation,  build  cottages  or  lodg- 
ing-houses, and  let  them  for  the  use  of  laborers. 
A  statute  of  similar  nature  (Allotments  Act, 
1887)  provides  that  when  the  local  sanitary  au- 
thority in  England  is  of  opinion  that  there  is  a 
demand  for  agricultural  allotments  or  for  pas- 
turage for  the  use  of  laborers,  and  that  these 
cannot  be  obtained  at  a  reasonable  rent,  it  may 
under  certain  conditions  buy,  hire,  or  take  land 
on  paying  compensation  therefor,  and  let  it  to 
laborers.  In  this  statute  there  are  provisions 
designed  to  pi'event  the  cost  from  exceeding 
the  receipts,  but  of  course  it  must  often  happen 
that  such  a  result  is  impossible,  and  provision 
is  made  for  supplying  the  deficit  by  loans  ; 
which  means,  ultimately,  by  taxation. 

The  power  which  these  acts  give  to  cities 
and  other  political  bodies  to  distribute  lands 
and  tenements  among  the  poor  at  the  expense 
of  the  rich,  or  to  become  landlords  on  a  large 
scale  and  thereby  regulate  rents,  is  certainly  a 
long  step  in  the  direction  of  socialism. 

Another  statute  that  ought  perhaps  to  be 
mentioned  is  the  famous  Ground  Game  Act  of 
1880,  which  gives  to  tenants  a  right  to  kill  hares 
and  rabbits  on  land  let  to  them,  and  interferes 
with  the  freedom  of  contract  by  providing  that 
any  clause  in  a  lease  which  restricts  the  right 
given  by  the  statute  shall  be  void. 


DEMOCRACY  AND   THE   CONSTITUTION.     113 

Let  us  glance  for  a  moment  at  the  special 
land  acts  passed  for  Ireland.  The  chief  of 
these  is  the  Land  Law  (Ireland)  Act,  1881, 
which  gives  the  tenant  farmer  a  vested  right  in 
the  land  unaffected  by  the  ending  of  his  term, 
and  provides  that  he  may  sell  his  tenancy  under 
certain  restrictions,  and  shall  never  have  his 
rent  raised,  or  be  turned  out,  except  for  non- 
payment of  rent,  or  a  breach  of  certain  condi- 
tions fixed  by  the  act.  If,  indeed,  "the  landlord 
wishes  to  use  the  land  for  certain  purposes  ap- 
proved by  the  court,  he  may  do  so,  but  in  that 
case  he  must  pay  to  the  tenant  a  compensation 
for  disturbance.  It  is  further  provided  that  ei- 
ther party  may  apply  to  the  land  court  to  fix  a 
fair  rent,  which  shall  then  be  binding  for  fif- 
teen years.  The  next  year  another  step  was 
taken  in  the  Arrears  of  Rent  (Ireland)  Act, 
1882,  which  provides  that  when  a  tenant  has 
paid  his  rent  for  the  last  year,  but  is  indebted 
for  arrears  which  he  is  unable  to  discharge,  the 
Land  Commission  may  pay- to  the  landlord  one 
half  of  these  arrears  on  the  tenant's  account, 
the  other  half  being  thereby  extinguished.  Five 
years  later  it  was  enacted  (Land  Law  (Ireland) 
Act,  1887)  that,  owing  to  the  fall  in  the  price 
of  agricultural  products  there  should  be  a  whole- 
sale revision  of  the  fair  rents  already  fixed,  and 
the  court  was  empowered,  when  of  opinion  that 


114  ESSAYS  ON  GOVERNMENT. 

a  tenant  is  unable  to  pay  rent  without  fault  on 
his  part,  to  stay  eviction  and  grant  delay. 

Parallel  to  these  enactments  there  are  corre- 
sponding provisions  to  protect  the  farm  laborer 
against  the  tenant.  By  these  the  Land  Com- 
mission is  empowered  to  order  the  tenant  to 
improve  or  build  cottages  for  the  laborers  he 
employs,  and  to  assign  them  allotments.  And 
in  such  cases  the  Commission  is  authorized  to 
fix  the  rent  to  be  paid  by  the  laborer. 

The  most  obvious  effect  of  these  acts  is  the 
confiscation  of  a  certain  amount  of  rent  to 
which  the  landlord  would  otherwise  be  entitled. 
It  will  also  be  noticed  that  they  virtually  trans- 
fer the  ownership  of  the  land  to  the  tenant,  re- 
serving to  the  landlord  in  its  stead  a  constantly 
diminishing  rent  charge.  But  the  most  omi- 
nous feature  of  this  legislation  is  to  be  found 
in  the  fact  that  all  right  to  arrange  the  terms 
of  a  certain  class  of  leases  is  taken  away  from 
the  parties  interested,  and  vested  in  the  gov- 
ernment. A  complete  confiscation  like  that  by 
which  the  slaves  were  freed  at  the  end  of  our 
Civil  War,  although  causing  more  suffering  at 
first,  would  probably  entail  on  posterity  less 
danger  than  this  plan  of  the  control  of  rents 
by  the  state. 

The  land  acts  for  Ireland  have  been  passed 
under  circumstances  so  peculiar,  and,  like  the 


DEMOCRACY  AND    THE  CONSTITUTION.     115 

emancipation  of  the  negroes  to  which  I  have  re- 
ferred, have  been  so  much  the  result  of  a  great 
political  movement,  that  they  are  not  a  fair  cri- 
terion of  the  tendencies  of  Parliament ;  and  yet 
they  are  important  as  a  symptom  of  the  influences 
at  work  in  public  opinion  in  England,  especially 
as  provisions  of  a  similar  nature  have  been  made 
for  the  benefit  of  the  Scotch  crofters,  although 
no  such  political  necessity  exists  in  their  case. 

The  Crofters  Holdings  (Scotland)  Act,  1886* 
contains  substantially  the  same  provisions  as 
the  Land  Law  (Ireland)  Act,  1881,  except 
that  the  tenant  cannot  sell  his  holding.  It 
passes,  however,  to  his  heirs,  and  he  may  de- 
vise it  under  certain  restrictions.  The  act 
gives  to  the  Crofters'  Commission  power  to  fix 
rents  for  the  future,  and  in  case  arrears  are  due, 
it  gives  the  Commission  authority  to  determine 
what  part  of  them  shall  be  paid,  and  to  cancel 
the  rest. 

The  most  astounding  statute  of  all  remains 
to  be  mentioned,  and  it  applies  alike  to  Eng- 
land, Scotland,  and  Ireland.  By  the  Settled 
Land  Act,  1882,  ;my  person  having  a  life  inter- 
est in  an  entailed  or  settled  estate  was  allowed 
to  sell,  exchange,  or  lease  the  whole  estate,  pro- 
vided he  obtained  the  highest  price  or  the  best 
terms  possible ;  the  proceeds  to  be  invested 
and    to    follow    the    terms    of    the    settlement. 


116  ESSAYS   ON  GOVERNMENT. 

Now  in  1885,  when  the  enthusiasm  about  dwell- 
ings for  laborers  ran  very  high,  it  was  enacted  in 
the  Housing  of  the  Working  Classes  Act,  1885, 
section  11,  that  a  sale,  exchange,  or  lease  of 
land  under  the  Settled  Land  Act,  for  the  pur- 
pose of  erecting  on  such  land  dwellings  for  the 
laboring  classes,  might  be  made  at  the  best 
price  obtainable  for  that  purpose,  although  a 
higher  price  might  be  obtained  for  some  other 
purpose.  A  life  tenant,  in  other  words,  who 
feels  inclined  to  give  a  part  of  his  life  interest 
to  this  kind  of  charity,  is  authorized  to  give 
a  corresponding  share  of  the  property  of  the 
remainder-man  to  the  same  object. 

These  few  specimens  of  British  legislation 
are  enough  for  our  purpose,  the  more  so  be- 
cause they  affect  not  only  agricultural  land, 
which  is  subject  to  very  peculiar  conditions 
in  England,  but  also  land  in  cities,  the  posi- 
tion of  which  does  not  differ  essentially  in 
England  and  America ;  and  bearing  this  in  mind 
it  must  be  evident  to  every  reader  that  tables 
like  those  in  Mr.  Bryce's  book,  which  leave 
out  all  statutes  touching  land,  give  no  fair 
comparison  of  state  interference  on  the  two 
sides  of  the  Atlantic.  It  is  safe  to  say  that  no 
laws  even  distantly  resembling  those  we  have 
reviewed  have  been  enacted  in  the  United 
States ;  and  the  conclusion  is  therefore  just  that 


DEMOCRACY  AND  THE  CONSTITUTION.    117 

England,  although  only  beginning  to  be  a  de- 
mocracy, has  already  gone  farther  in  the  direc- 
tion of  socialism  than  the  communities  on  this 
side  of  the  ocean. 


III. 


THE   EESPONSIBILITIES     OF    AMERICAN   LAW- 
YERS. 

Che  val,  perche  ti  racconciasse  M  freno 
Giustiniano,  se  la  sella  e  vota  V 

Dante,  Purgatorio,  Canto  vi. 

It  is  one  of  the  popular  fallacies  of  the 
present  day  that  the  responsibility  for  the  state 
of  the  law  rests  entirely  with  the  legislative 
branch  of  the  government.  In  reality,  this  re- 
sponsibility is  in  every  country  shared  to  a 
great  extent  by  the  legal  profession  ;  and  the 
slow  development  of  the  law  which  results 
from  the  writings  of  jurists,  the  judgments  of 
courts,  and  the  customary  practice  of  lawyers, 
is,  perhaps,  more  irresistible,  because  less  no- 
ticed, than  the  violent  changes  produced  by 
direct  legislation.  This  is  especially  true  in 
countries  where  the  decisions  rendered  in 
actual  cases  furnish  the  main  source  of  legal 
authority  ;  but  it  is  not  the  general  respon- 
sibility of  lawyers,  in  lands  where  the  com- 
mon law  prevails,  that  I  wish  to  consider.  It  is 
the    more    restricted    but    more    weighty    duty 


RESPONSIBILITY  OF  AMERICAN  LAWYERS.    119 

which  is  laid  upon  the  legal  profession  in 
America  by  the  peculiar  nature  of  oar  system 
of  government. 

The  immense  power  given  to  the  courts  by 
our  constitutions  is  so  familiar  to  us  that  re- 
mark upon  it  has  become  commonplace,  and  for 
that  very  reason  we  sometimes  fail  to  realize  its 
true  significance  as  fully  as  does  the  foreigner 
to  whom  it  is  a  subject  of  astonishment.  We 
are  in  the  habit  of  speaking  of  our  political 
system  as  a  government  by  the  people,  carried 
on  by  means  of  three  coordinate  branches,  — 
the  executive,  the  legislative,  and  the  judi- 
cial ;  but  when  these  expressions  are  examined 
carefully,  it  is  evident  that  they  are  mislead- 
ing, and  perhaps  inaccurate,  at  least  in  the 
sense  in  which  they  are  commonly  understood. 
These  three  branches,  in  the  first  place,  are 
called  coordinate,  and  work  each  in  a  separate 
and  defined  province  ;  and  yet,  as  must  of 
necessity  be  the  case  in  human  affairs,  the 
lines  of  demarcation  are  not  always  clear,  and 
unless  confusion  is  to  be  endless,  a  power  must 
exist  somewhere  to  determine  the  limits  of  the 
separate  provinces,  and  to  decide  controversies 
in  regard  to  them.  The  power  to  do  this  has 
been  confided  to  the  courts  in  accordance  with 
the  principles  of  the  common  law,  if  not  by  the 
express  provisions  of  the  Constitution. 


120  ESSAYS  ON  GOVERNMENT. 

The  effect  upon  the  other  branches  of  the 
government  of  a  decision  by  the  Supreme  Court 
on  a  point  of  constitutional  law  has  given  rise 
to  some  difference  of  opinion,  and  although  an 
extended  discussion  of  the  question  would  be 
interesting  only  to  lawyers,  a  few  words  of 
explanation  may  help  to  make  the  subject 
clear  to  those  who  are  not  familiar  with 
law.  A  decision  by  the  highest  court  of  ap- 
peal has  two  distinct  effects.  In  the  first 
place,  it  is  absolutely  and  finally  binding  on 
the  parties  to  the  suit  and  all  persons  claiming 
under  them,  but  it  is  binding  on  no  one  else. 
In  the  second  place,  it  establishes  a  precedent 
which,  under  ordinary  circumstances,  is  morally 
certain  to  be  followed  whenever  the  same  ques- 
tion is  again  presented  to  the  court ;  and  it  is 
in  consequence  of  this  second  effect  of  a  deci- 
sion that  the  court  has  virtually  power  to  set- 
tle the  law.  In  the  United  States,  all  officers 
of  the  government  are  subject  to  the  ordinary 
rules  of  law ; 1  and  while  the  courts  have  no 
general  power  to  command  the  performance 
of  official  duties,  a  public  officer  can  be  sued 
or  prosecuted  for  violations  of  the  law,  like 
any  other  citizen,  and  his  official  position  or 
the  orders  of    his    superior  are  no   defence    to 

1  There  are  a  few  exceptions,  such,  for  example,  as  that  of  sol- 
diers, in  some  of  the  States,  when  called  out  to  suppress  a  riot,  etc. 


RESPONSIBILITY  OF  AMERICAN  LAWYERS.     121 

him.  If  he  lias  done  any  act  in  excess  of  his 
authority,  he  is  liable  for  it,  precisely  as  any 
one  else  who  had  done  the  same  act  would  be ; 
and  it  is  for  the  ordinary  courts  of  law  to  de- 
cide whether  the  act  in  question  is  beyond  his 
authority  or  not.  If,  therefore,  the  court  has 
decided  that  a  certain  statute  is  unconstitu- 
tional, every  one  knows  that  he  may  treat  that 
statute  as  invalid.  He  knows  that  the  court 
will  give  him  redress  against  any  person, 
whether  public  officer  or  private  citizen,  who 
injures  him  under  color  of  its  provisions ;  and 
he  knows  that  he  may  resist  any  officer  or 
other  person  who  attempts  to  enforce  it,  and 
that  he  will  be  held  harmless  for  so  doing.  In 
many  of  the  continental  countries  of  Europe  a 
public  officer  is  exempt  from  the  ordinary  pro- 
cess of  law,  either  by  virtue  of  a  provision 
that  he  cannot  be  sued  or  prosecuted  in  the 
ordinary  courts,  on  account  of  any  act  done 
under  color  of  his  office,  without  the  consent  of 
a  council  composed  of  his  official  superiors,  or 
because  his  acts  are  cognizable  only  by  special 
administrative  tribunals  ;  and  where  this  is 
true,  it  is  clear  that  the  judiciary  cannot  by 
their  decisions  bind  the  other  branches  of  the 
government.  There  is,  in  those  countries,  one 
law  for  the  citizen  and  another  for  the  public 
servant;  and,  in  fact,  the  rights  and  duties  of 


122  ESSAYS   ON  GOVERNMENT. 

the  latter  are  regulated  by  a  vast  body  of 
special  law  known  in  France  as  the  droit  ad- 
ministratif,  which  falls  entirely  outside  the 
jurisdiction  of  the  ordinary  courts.  By  such 
means  the  executive  has  been  made  really 
independent  of  the  judiciary.1  But  nothing  of 
this  kind  is  true  in  the  United  States.  There 
is  here  only  one  law,  administered  by  one  set 
of  tribunals,  to  whose  jurisdiction  every  one  is 
subject.  It  follows  that  the  law  administered 
by  the  courts  is  the  one  law  of  the  land,  bind- 
ing on  all  persons  and  all  branches  of  the 
government.  This  must  of  necessity  be  the 
case  so  long  as  public  officers  are  amenable  to 
the  ordinary  process  of  the  courts,  and  it  is  as 
true  of  constitutional  as  of  the  common  law, 
so  far  at  least  as  the  rights  of  individuals  are 
concerned.  The  fact  is,  that  a  great  deal  of 
confusion  has  been  introduced  into  this  subject 
by  regarding  the  provisions  of  the  Constitu- 
tion as  a  statement  of  political  maxims,  instead 
of  a  source  of  positive  law.     If  it  is  admitted 

—  as  no  one   now  attempts  seriously  to  deny 

—  that  the  Constitution  has  the  effect  of  a  law 
enacted  by  a  body  of  higher  legislative  au- 
thority than  Congress,  the  question  is  really 
cleared  of  most  of  its  difficulty,  for  no  one  doubts 

1  This  matter  is  admirably  treated  in  A.  V.  Dicey's  Law  of 
the  Constitution,  London,  1885. 


RESPONSIBILITY  OF  AMERICAN  LA  WYERS.    123 

that  the  executive  is  bound  by  a  judicial  con- 
struction of  a  statute. 

These  statements  must,  of  course,  be  under- 
stood with  the  qualification  that  the  courts  have 
authority  to  determine  the  limits  of  the  pow- 
ers granted  by  the  Constitution  only  when 
the  question  is  presented  in  actual  litigation. 
But  as  there  is  no  question  of  this  sort  which 
may  not  arise  in  an  actual  case,  the  qualifi- 
cation does  not  impair  the  correctness  of  the 
principle. 

The  judicial  branch  of  the  government  is, 
therefore,  the  final  arbiter  and  ultimate  au- 
thority on  all  matters  touching  the  limits  of 
the  powers  granted  by  the  Constitution.  It 
possesses  no  direct  initiative,  but  it  is  the  sole 
and  final  judge  of  its  own  rights,  as  well  as  of 
those  of  the  executive  and  legislature;  and  in 
this  sense,  while  greatly  inferior  in  force,  it  is 
superior  in  authority  to  the  other  two  branches 
of  the  government. 

Let  us  consider  for  a  moment  the  nature  of 
the  body  in  which  this  vast  power  is  vested. 
The  executive  and  legislature  are  elected  by 
the  people,  or  by  some  rough  approximation  to 
a  majority  of  the  people,  and  in  a  general  way 
they  are  expected  to  carry  out  the  wishes  of 
their  constituents ;  but  the  courts  stand  in  a 
very  different  position.     They  are  not,  in  the 


124  ESSAYS  ON  GOVERNMENT. 

ordinary  meaning  of  the  word,  the  representa- 
tives of  the  people,  and  it  is  not  their  mission  to 
enforce  the  popular  will.  To  some  extent,  it  is 
true,  the  opinion  has  prevailed  that  the  judges, 
like  all  other  public  servants,  ought  to  depend 
for  office  upon  popular  esteem  or  approval ; 
and  in  many  States  laws  have  been  passed 
providing  that  they  shall  be  elected  by  the  peo- 
ple for  limited  terms.  But,  happily,  the  in- 
fluence of  such  ideas  appears  to  be  on  the 
wane ;  for  the  lengthening  of  these  terms,  and 
the  provisions  forbidding  reelection,  seem  to 
indicate  a  return  to  a  more  rational  view  of  the 
functions  of  the  judiciary.  If  it  were  the 
duty  of  the  courts  to  give  effect  to  the  wishes 
of  the  people  upon  constitutional  questions, 
our  government  would  be  a  truly  absurd  one. 
The  judicial  bod}'  would  then  be  a  sort  of  ad- 
ditional legislature  extremely  ill-fitted  for  its 
task.  But,  in  fact,  the  duty  of  the  courts  is 
almost  the  reverse  of  this,  because  the  popular 
desire  for  a  law  may  very  well  be  presumed 
from  the  fact  that  it  has  been  passed  by  the 
legislature,  and  the  courts  are  given  power  to 
treat  a  statute  as  invalid  in  order  that  they 
may  thwart  the  popular  will  in  cases  where  that 
will  conflicts  with  the  provisions  of  the  Consti- 
tution. Now,  the  Constitution  is  always  older 
than  the  law  in  question,  and  may  be  more 


RESPONSIBILITY  OF  AMERICAN  LA  WYERS.    125 

ancient  by  a  century,  so  that  the  court,  in  de- 
ciding that  a  law  is  unconstitutional,  declares, 
in  effect,  that  the  present  wishes  of  the  people 
cannot  be  carried  out,  because  opposed  to  their 
previous  intention,  or  to  the  views  of  their  re- 
mote ancestors.  All  our  constitutions  have  a 
safety-valve,  no  doubt,  in  the  power  of  amend- 
ment, so  that  any  of  them  can  be  changed  by 
a  sufficient  proportion  of  the  voters,  if  they 
persist  long  enough  in  the  same  opinion;  but 
this,  while  modifying,  does  not  do  away  with 
the  fact  that  it  is  often  the  duty  of  our  courts 
to  defeat  the  immediate  wishes  of  a  majority 
of  the  people.  Stated  in  such  a  form,  the 
power  of  our  judiciary  is  certainly  very  start- 
ling ;  and  it  is  even  more  surprising  that  a 
power  so  extensive  should  have  been  placed  in 
the  hands  of  a  small  number  of  men,  chosen 
exclusively  from  one  profession,  and  this  among 
a  people  who  are  jealous  of  the  influence  of  all 
associations  and  professions,  and  who  are  impa- 
tient of  authority  of  every  kind.  The  truth  is 
that  our  fathers,  while  admitting  the  right  of 
the  people  to  govern  within  certain  limits,  be- 
lieved that  there  were  principles  more  impor- 
tant than  the  execution  of  every  popular  wish, 
and  rights  which  ought  not  to  be  violated  by 
the  impulse  and  excitement  of  a  majority ;  and 
the    constitutional    provisions    established    by 


126  ESSAYS    ON  GOVERNMENT. 

them  remain  in  force  to-day,  because  we  still 
believe  in  the  sacredness  of  the  principles 
which  they  preached.  These  principles  stand 
on  the  same  ground  as  moral  precepts.  The 
restraints  they  place  upon  us  are  not  always 
agreeable,  but  we  continue  to  uphold  them,  be- 
cause we  believe  in  their  inherent  righteousness 
and  in  their  importance  to  the  well-being  of  the 
world.  The  duty  of  watching  over  and  guard- 
ing these  fundamental  principles,  —  these  legal 
morals,  if  I  may  be  allowed  the  term,  —  of  de- 
veloping, explaining,  and  defending  them,  rests 
with  the  legal  profession  ;  and  if  this  is  true,  it 
is  surely  difficult  to  overestimate  the  responsi- 
bility of  lawyers  in  America. 

I  have  said  that  the  constitutional  principles 
taught  by  our  fathers  retain  their  force  to-day 
because  we  still  believe  in  them  ;  but  the  state- 
ment requires  some  explanation.  For  a  long 
time  the  Constitution  of  the  United  States  was 
the  object  of  what  has  been  called  a  fetish  wor- 
ship ;  that  is,  it  was  regarded  as  something  pe- 
culiarly sacred,  and  received  an  unquestioned 
homage  for  reasons  quite  apart  from  any  virtues 
of  its  own.  The  Constitution  was  to  us  what 
a  king  has  often  been  to  other  nations.  It  was 
the  symbol  and  pledge  of  our  national  existence, 
and  the  only  object  on  which  the  people  could 
expend  their  new-born  loyalty.     Let  us  hope 


RESPONSIBILITY  OF  AMERICAN  LAWYERS.     127 

that  such  a  feeling  will  never  die  out,  for  it  is 
a  purifying  and  ennobling  one  ;  but  to-day  our 
national  union  is  so  fully  accomplished,  that 
we  need  no  symbol  or  pledge  to  assure  us  of 
the  fact,  and  we  can  no  longer  expect  the  blind 
veneration  for  our  Constitution  which  prevailed 
in  the  first  decades  of  the  century.  This  is  a 
time  when  all  forms  of  government  are  being 
put  to  the  test,  and  our  own  must  approve  itself 
by  the  excellence  of  the  principles  upon  which 
it  is  built.  At  the  present  moment  the  power 
lodged  with  the  courts  appears  to  be  one  of 
the  most  stable  features  of  our  government ; 
and  in  fact  we  are  so  accustomed  to  see  judi- 
cial decisions  readily  accepted  and  implicitly 
obeyed,  that  we  cannot  help  attributing  to 
them  a  mysterious  intrinsic  force.  We  are  nat- 
urally in  the  habit  of  ascribing  to  the  courts 
a  sort  of  supernatural  power  to  regulate  the 
affairs  of  men,  and  to  restrain  the  excesses  and 
curb  the  passions  of  the  people.  We  forget 
that  no  such  power  can  really  exist,  and  that 
no  court  can  hinder  a  people  that  is  deter- 
mined to  have  its  way;  in  short,  that  nothing 
can  control  the  popular  will  except  the  sober 
good  sense  of  the  people  themselves.  One  has 
only  to  turn  his  eyes  to  Fiance  to  see  the  truth 
of  this  statement.  That  country  has  had  a 
dozen  constitutions,  each  ;is  sacred  as  such  an 


128  ESSAYS    ON  GOVERNMENT. 

instrument  can  be,  but  they  have  all  been 
short-lived,  and  no  one  supposes  that  their  frail 
existence  could  have  been  preserved  by  grant- 
ing to  the  French  courts  the  powers  possessed 
by  our  own.  The  cause  of  such  a  state  of 
things  is  obvious.  The  French  constitutions 
are  the  work  of  a  party,  and  the  people  at 
lai'ge  are  more  anxious  to  accomplish  their  im- 
mediate aims  than  to  maintain  the  theoretical 
doctrines  embodied  in  these  instruments.  The 
reverse  of  this  is  true  here,  and  it  is  because 
our  people  care  more  for  their  Constitution 
than  for  any  single  law  enacted  by  the  legisla- 
ture that  constitutional  government  is  possible 
among  us.  So  long  as  such  a  feeling  continues, 
our  Constitution  and  the  power  of  our  courts 
will  remain  unimpaired ;  but  if  at  any  time  the 
people  conclude  that  constitutional  law,  as  inter- 
preted by  lawyers,  is  absurd  or  irrational,  the 
power  of  the  judiciary  will  inevitably  vanish, 
and  a  great  part  of  the  Constitution  will  be 
irretrievably  swept  away.  Our  constitutional 
law  depends  for  its  force  upon  the  fact  that  it 
approves  itself  to  the  good  sense  of  the  people ; 
and  the  power  of  the  courts  is  held  upon  con- 
dition that  the  precedents  established  by  them 
are  wise,  statesmanlike,  and  founded  upon  en- 
during principles  of  justice  which  are  worthy 
of  the  respect  of  the  community. 


RESPONSIBILITY  OF  AMERICAN  LAWYERS.    129 

How,  then,  it  may  be  asked,  are  the  courts 
to  make  their  decisions  respected  and  approved 
by  the  people  ?  By  catching  the  current  of  pop- 
ular opinion,  and  leaning  towards  that  inter- 
pretation of  constitutional  questions  which  the 
wants  of  the  day  appear  to  demand?  By  no 
means.  Such  a  course  is  of  all  the  best  calcu- 
lated in  the  long  run  to  bring  the  judiciary 
into  disrepute,  for  it  makes  of  them  a  political 
instead  of  a  legal  body.  To  suggest  it  shows 
an  entire  want  of  appreciation  of  the  genius 
of  our  people;  and,  in  fact,  the  cases  in  which 
the  bench  has  suffered  the  greatest  loss  of  influ- 
ence have  been  those  in  which  it  has  allowed 
popular  excitement,  or  party  prejudice,  which 
is  really  the  same  thing,  to  affect  its  opinions. 
What  is  needed  to  maintain  the  esteem  in 
which  the  courts  are  now  held  is  a  careful 
study  of  the  principles  established  by  the  Con- 
stitution, and  a  clear  development  of  the  theo- 
ries of  constitutional  law  ;  not  theory  in  the 
narrow  sense  of  something  contrasted  and  of- 
ten irreconcilable  with  practice.  Theory  in  this 
sense  is  nothing  more  than  a  set  of  doctrines 
at  best  the  logical  result  of  premises  more  or 
less  inaccurate.  It  is  extremely  easy  to  manu- 
facture, and  is  justly  an  object  of  suspicion  with 
the  public.  What  we  need  in  the  study  of 
Constitutional  law  is  theory  in  a  higher  sense. 


130  ESSAYS   ON  GOVERNMENT. 

We  need  that  ripe  scholarship  which  regards 
theory  as  truth  stated  in  an  abstract  form,  to 
be  constantly  measured  by  practice  as  a  test  of 
its  correctness ;  for  theory  and  practice  are  in 
reality  correlatives,  each  of  which  requires  the 
aid  of  the  other  for  its  own  proper  develop- 
ment. It  often  happens,  when  some  zealous 
student  propounds  a  striking  principle  whereby 
all  the  problems  in  the  world  can  be  solved  by 
a  simple  formula,  that  a  by-stander  remarks  : 
"That  may  be  all  very  well  in  theory,  but  it 
will  not  work  in  practice."  This  saying  is  a 
very  common  one,  but  it  is  founded  on  a  most 
pernicious  error  ;  for  either  it  uses  the  word 
"theory"  in  the  ridiculous  sense  of  something 
which  ought  to  be  true,  and  would  be  true  if 
the  world  were  property  constructed,  or  else  it 
assumes  that  a  theory  may  be  correct  although 
inconsistent  with  the  facts  or  practice  which  it 
attempts  to  explain  :  whereas  in  realit\r  a  theory 
which  does  not  agree  with  the  facts,  or  will  not 
work  in  practice,  is  simply  wrong.  A  practice, 
on  the  other  hand,  which  is  not  guided  and 
enlightened  by  abstract  or  theoretical  study 
is  short  -  sighted,  unprogressive,  and  extremely 
likely  to  be  based  upon  a  blunder. 

It  may  seem  to  the  reader  that  there  is  no 
danger  of  committing  either  of  these  errors  in 
the  study  of  constitutional  law,  but  a  careful 


RESPONSIBILITY  OF  AMERICAN  LA  WYERS.     131 

review  of  the  decisions  on  the  subject,  espe- 
cially those  to  be  found  in  some  of  the  state 
reports,  will  convince  him  that  the  judges  have 
been  constantly  falling  into  one  or  the  other 
of  these  pitfalls,  and  sometimes,  strange  as  the 
feat  may  appear,  into  both  of  them  at  the  same 
time.  There  are  many  decisions  in  which  the 
court  evidently  had  no  principle  of  general  ap- 
plication in  mind  at  all ;  others  where  the  opin- 
ion is  based  upon  some  high-sounding  but  en- 
tirely inaccurate  generality,  which,  if  literally 
applied,  would  overrule  half  the  cases  and  up- 
set the  whole  fabric  of  constitutional  law  ;  and 
there  are  not  a  few  cases  in  which  the  gener- 
ality is  enunciated  with  solemn  gravity,  while 
it  is  perfectly  clear  that  it  had  nothing  to  do 
with  the  decision,  which  was  determined  by  the 
judge's  general  impression  of  the  case.  Let 
me  not  be  supposed  to  apply  any  of  this  lan- 
guage to  the  decisions  of  our  great  constitu- 
tional lawyers.  On  the  contrary,  I  have  the 
highest  appreciation  of  the  labors  of  these  men, 
and  I  feel  that  their  country  owes  them  an 
eternal  debt  of  gratitude.  Marshall,  who  set 
the  tone  for  his  successors,  combined  the  wis- 
dom of  the  philosopher  with  the  good  sense  of 
the  magistrate,  and  it  is  precisely  because  these 
qualities  are  so  rarely  united  that  I  wish  to  in- 
sist on  the  importance  of   both  of   them,  and 


132  ESSAYS  ON   GOVERNMENT. 

to  signalize  the  evils  which  may  flow  from  the 
absence  of  either. 

Those  persons  who  regard  the  provisions  of 
the  Constitution,  and  particularly  the  ones  de- 
signed to  protect  the  rights  of  the  individual, 
not  as  a  mere  collection  of  arbitrary  rules,  but 
as  a  set  of  principles  adapted  to  promote  the 
happiness  and  prosperity  of  the  people,  will 
find  it  easy  to  believe  that  these  principles, 
clearly  expounded  and  wisely  applied,  cannot 
fail  to  retain  their  hold  upon  the  respect  of  the 
citizen. 

A  careful  study  of  constitutional  law  is  espe- 
cially important  at  this  time,  because  the  four- 
teenth amendment  to  the  Constitution  of  the 
United  States  has  furnished  an  opportunity  for 
a  review  of  the  decisions  of  the  state  courts 
upon  a  most  important  branch  of  the  law. 
The  first  ten  amendments  to  the  Constitution, 
including  the  provision  that  no  one  shall  be 
deprived  of  life,  liberty,  or  property  without 
due  process  of  law,  were  adopted,  as  it  was 
early  settled,  solely  for  the  purpose  of  limiting 
the  power  of  Congress.  They  imposed  no  re- 
straint upon  the  legislative  power  of  the  sev- 
eral States ;  and  as  Congress  found  few  occa- 
sions to  violate  this  provision,  the  federal  judges 
were  seldom  required  to  put  a  construction 
upon  it.    The  state  constitutions,  however,  con- 


RESPONSIBILITY  OF  AMERICAN  LA  WYERS.     133 

tain  similar  clauses,  and  the  state  courts  have 
had  abundant  opportunities  to  interpret  them. 
Now,  the  fourteenth  amendment,  adopted  after 
the  close  of  the  civil  war,  contains  a  provision 
extending  the  same  limitation  to  the  power  of 
the  several  States,  and  in  this  way  the  acts  of 
the  state  legislatures  which  are  supposed  to  vio- 
late the  rights  thereby  secured  have  been  drawn 
within  the  jurisdiction  of  the  courts  of  the 
United  States.  The  great  branch  of  constitu- 
tional law,  therefore,  which  depends  upon  this 
important  part  of  the  Bill  of  Rights  is  now  be- 
ing reviewed  by  the  federal  judges,  who  are  not 
bound  by  the  decisions  made  in  the  state  courts, 
and  yet  have  the  benefit  of  the  experience  of  a 
century.1 

What  I  have  said  may  appear  to  touch  only 
the  judges,  and  to  have  no  application  to  the 
profession  at  large.  But,  in  the  first  place,  it 
must  be  remembered  that  the  judges  are  se- 
lected from  the  ranks  of  the  profession,  and 
that  in  the  long  run  their  views  upon  the  im- 
portance of  constitutional  law,  and  their  sense 
of  the  great  responsibility  of  their  position, 
must  be  derived  mainly  from  the  profession  in 
which  they  were  bred.     It  is  not,  however,  only 

1  In  its  recent  decisions  the  Supreme  Court  seems  to  be  in- 
clined to  attribute  less  importance  to  this  provision  than  mifjht  be 
wished. 


134  ESSAYS   ON  GOVERNMENT. 

as  the  great  mother  of  judges  that  the  legal 
profession  is  involved  in  this  responsibility. 
Every  lawyer  may  become  engaged,  in  suits 
turning  upon  points  of  constitutional  law.  He 
then  finds  himself  arguing  questions  which 
among  other  nations  are  determined  by  a  pop- 
ular assembly  or  parliament  of  the  realm,  and 
he  argues  before  a  court  whose  decision  becomes 
a  precedent,  often  more  difficult  to  shake  than 
any  act  of  Parliament.  Every  American  law- 
yer is  in  a  sense  a  statesman  by  virtue  of  his 
profession,  and  may  at  any  time  find  himself 
called  upon  to  take  part  in  deciding  questions 
destined  to  leave  a  lasting  mark  upon  the  gov- 
ernment of  his  country.  His  position  differs 
in  one  very  important  respect,  it  is  true,  from 
that  of  a  member  of  Parliament,  for  he  ap- 
pears on  the  side  which  he  is  retained  to  rep- 
resent, and  not  on  that  which  he  believes  to 
be  right,  —  a  state  of  things  which  it  is  use- 
less to  try  to  explain  to  a  layman,  and  which 
to  a  lawyer  needs  no  explanation.  And  yet 
even  the  layman  may  be  ready  to  grant  that 
an  exalted  sense  of  the  importance  of  the  sub- 
ject, broad  views,  and  a  strong  grasp  of  con- 
stitutional principles,  on  the  part  of  the  advo- 
cates cannot  fail  to  have  a  very  great  effect  upon 
the  decision  of  the  court. 

Some  cynic,   who  has   had  the   patience  to 


RESPONSIBILITY  OF  AMERICAN  LAWYERS.     135 

read  so  far,  will  no  doubt  remark  that  the 
legal  profession  is  not  a  charitable  institution, 
and  that  men  practice  law  to  get  money  and 
support  themselves,  and  not  from  philanthropic 
motives.  To  this  I  answer  that  no  profession 
can  be  great  unless  the  money-making  aims  of 
the  individual  are  leavened  by  a  sense  of  the 
importance  of  his  vocation,  and  of  the  dignity 
of  the  body  that  pursues  it.  A  man  who  is 
unconscious  of  the  strength  of  the  esprit  de 
corps  of  a  great  profession,  of  its  power  to  in- 
spire its  members  with  a  high  and  noble  ambi- 
tion, and  to  make  itself  an  end  and  not  a  mere 
means  of  making  money,  —  a  man  who  has 
never  felt  this  has  failed  to  appreciate  one  of 
the  most  valuable  of  human  qualities.  He  has 
only  to  turn  his  eyes  to  the  doctors  to  see  its 
force,  and  no  careful  search  is  required  to  find 
it  among  lawyers.  This  is  the  quality  which 
we  need  to  foster,  because  its  influence  upon 
the  moral  and  intellectual  condition  of  the  legal 
profession  is  great,  and  because  it  is  upon  that 
profession  that  we  must  chiefly  rely  for  the 
preservation  of  constitutional  principles  in  this 
country. 


IV. 

THE   THEORY   OF  THE   SOCIAL   COMPACT. 
A   SKETCH   OF  ITS   HISTORY. 

L'homme  est  ne-  libre,  et  par-tout  il  est  dans  les  fers.  Tel 
se  croit  le  maitre  des  autres,  qui  ne  laisse  pas  d'etre  plus  es- 
clave  qu'eux.  Comment  ce  changement  s'est-il  fait?  je  1'ignore. 
Qu'est-ce  qui  peut  le  rendre  legitime?  je  crois  pouvoir  re'sou- 
dre  eette  question.  — Rousseau,  Contrat  Social,  livre  i.  chap.  i. 

The  political  capacity  of  the  English  people 
is  due  in  large  measure  to  their  great  ingenuity 
in  inventing  political  theories,  and  their  obsti- 
nate skepticism  in  refusing  to  believe  in  them. 
Perhaps  no  better  illustration  of  these  qualities 
can  be  found  than  in  the  history  of  that  extra- 
ordinary theory  which,  under  the  name  of  the 
"social  compact,"  influenced  deeply  the  polit- 
ical thought  of  Europe  and  America  for  two  cen- 
turies. And  it  is  not  the  least  singular  fact 
about  a  doctrine  which  proved  so  destructive 
to  the  existing  order  of  things  in  Europe  that 
it  should  have  originated  with  a  clergyman  of 
the  Church  of  England,  and  should  have  been 
invented  by  him  for  the  purpose  of  defending 
the  Established  Church  against  the  attacks  of 


THE   THEORY  OF   THE  SOCIAL   COMPACT.       137 

its  enemies.  But  in  fact  the  position  of  the 
Church  of  England  during  the  reign  of  Eliza- 
beth, and  for  a  good  while  afterwards,  was  ex- 
tremely difficult;  for  it  was  assailed  on  one  side 
by  the  Catholics,  who  claimed  the  authority  of 
a  divinely  inspired  church,  and  on  the  other 
by  the  Puritans,  who  referred  their  system  of 
organization  to  the  express  teaching  of  the  Bi- 
ble. Under  these  circumstances,  the  "judicious 
Hooker,"  as  he  was  afterwards  called,  instead 
of  meeting  his  opponents  on  their  own  ground 
by  claiming  a  divine  origin  for  the  English 
ecclesiastical  system,  parried  their  attacks  by 
denying  that  any  religious  body  is  under  direct 
divine  guidance  in  all  matters,  and  asserting 
that  laws  for  the  government  of  the  church 
may  be  made  by  men,  and  that,  if  according  to 
reason  and  not  repugnant  to  Scripture,  they 
are  authorized  by  God. 

Hooker  begins  his  "  Ecclesiastical  Polity  "  1 
with  a  discussion  of  laws  in  general.  He  treats 
of  the  condition  of  men  before  the  existence  of 
civil  society,  showing  how  force  might  then 
be  resisted  by  force,  and  no  one  had  a  right 
to  constitute  himself  a  judge  in  his  own  case. 
To  escape  from  this  state  of  things  "  there 
was  no  way  but  only  by  growing  unto  com- 
position and  agreement  amongst  themselves, 
i  Published  in  1594. 


138  ESSAYS   ON   GOVERNMENT. 

by  ordaining  some  kind  of  government  public, 
and  by  yielding  themselves  subject  thereto." 
A  father,  he  says,  has  by  nature  a  supreme 
power  within  his  own  family,  but  rulers  "  not 
having  the  natural  superiority  of  fathers,  their 
power  must  needs  be  either  usurped,  and  then 
unlawful ;  or,  if  lawful,  then  either  granted  or 
consented  unto  by  them  over  whom  they  ex- 
ercise the  same,  or  else  given  extraordinarily 
from  God,  unto  whom  all  the  world  is  sub- 
ject." Disregarding  the  last  alternative,  Hooker 
bases  government  upon  the  consent  of  the  gov- 
erned. Not  that  these  need  give  a  special  as- 
sent to  each  separate  law,  for  it  is  enough  if 
they  agree,  once  for  all,  that  their  rulers  shall 
have  authority  to  make  laws  for  them.  "  And 
to  be  commanded  we  do  consent,"  he  says, 
"  when  that  society  whereof  we  are  part  hath 
at  any  time  before  consented,  without  revok- 
ing the  same  after  by  the  like  universal  agree- 
ment. Wherefore  as  any  man's  deed  past  is 
good  as  long  as  himself  continueth  ;  so  the  act 
of  a  public  society  of  men  done  five  hundred 
years  sithence  standeth  as  theirs  who  presently 
are  of  the  same  societies,  because  corporations 
are  immortal ;  we  were  then  alive  in  our  pre- 
decessors, and  they  in  their  successors  do  live 
still.  Laws  therefore  human,  of  what  kind  so- 
ever, are  available  by  consent." 


THE  THEORY  OF   THE  SOCIAL   COMPACT.       189 

Such  was  the  origin  of  the  theory  of  the 
social  compact ;  for  although  the  idea  that  the 
authority  of  the  ruler  is  conferred  upon  him  by 
the  people  was  not  new,  I  am  not  aware  that 
any  one  before  Hooker  deduced  the  universal 
lawfulness  of  laws  from  the  voluntary  associ- 
ation of  individuals  to  form  a  civil  society.1 

It  would  not  be  safe,  however,  to  make  too 
positive  a  statement  in  regard  to  Hooker's 
claim  as  first  inventor,  and  it  is  by  no  means 
impossible  that  the  theory  may  have  been 
originated  by  several  persons  independently 
during  the  last  part  of  the  sixteenth  and  the 
early  part  of  the  seventeenth  centuries.  The 
course  of  thought  had  for  many  years  been 
such  as  to  prepare  men's  minds  to  produce  and 
accept  a  theory  of  this  kind  ;  and,  indeed,  the 
doctrine  that  the  authority  of  the  king  is  de- 
rived from  the  consent  of  his  people  had 
recently  become  very  prominent,  and  had  de- 
veloped until  it  assumed  a  form  only  a  little 
less  complete   than   that  of  the    theory  enun- 

1  Fortescue,  writing  about  the  end  of  the  Wars  of  the  Roses,  di- 
vides monarchs  into  two  classes  :  tho^e  whose  power  is  founded  on 
conquest,  and  whose  authority  is  absolute;  and  those  whose  power 
is  derived  from  a  compact  made  by  the  community  in  forming  a 
body  politic,  and  whose  authority  is  limited.  (De  Laudtbus  Le- 
gum  Anglice,  ch.  11-13  ;  The  Governance  of  England,  ch.  1,  2). 
He  places  the  king  of  France  in  the  former  class,  and  the  king  of 
England  in  the  latter.  This  partial  theory  of  a  social  compact  may 
have  been  drawn  bv  him  from  earlier  sources. 


140  ESSAYS   ON  GOVERNMENT. 

ciated  by  Hooker.  The  desire  to  get  rid  of  an 
obnoxious  monarch  always  acted  as  a  strong 
spur  to  drive  men  to  opinions  which  made  his 
tenure  of  power  dependent  upon  the  will  of  his 
subjects.  The  English  and  Scotch  Protestants 
smarting  under  the  persecutions  of  the  two 
Marys,  the  Catholic  league  in  France  furious 
with  Henry  III.,  and  in  their  train  the  Jesuits, 
all  insisted  on  the  right  of  deposing  a  king,  and 
often  went  so  far  as  to  justify  his  assassination. 
But  while  their  doctrines  were  similar  they 
were  not  identical;  for  the  Jesuits  maintained 
that  a  king  must  be  deposed  by  the  Pope  be- 
fore he  could  be  murdered  by  a  subject,  while 
the  Protestants  recognized  no  such  limitation. 

The  theory  once  started  soon  became  pop- 
ular, and  before  long  it  was  put  into  practice  ; 
for  the  first  social  compact  known  to  history 
was  made  on  the  11th  of  November,  1620,  in 
the  cabin  of  the  Mayflower.  It  was  clearly 
no  desire  to  uphold  the  polity  of  the  Church 
of  England  which  induced  the  Pilgrim  Fathers 
thus  to  emerge  from  a  state  of  barbarism ; 
nor  does  this  document  appear  to  have  been 
the  result  of  any  democratic  doctrines,  but 
rather,  as  Bradford  tells  us,  of  threats  of  in- 
subordination on  the  part  of  certain  persons 
on  board,  whom  no  one  had  power  to  control, 
because  the  patent  issued  in  favor  of  the  Pil- 


THE  THEORY   OF  THE  SOCIAL   COMPACT.     141 

grims  covered  only  a  part  of  the  territory  then 
called  Virginia,  and  did  not  extend  to  New  Eng- 
land.1 The  colonists  found  themselves  much 
in  the  position  of  the  navigator  who  sailed  off 
his  chart,  and  was  obliged  to  devise  a  new  one 
to  cover  the  emergency.  The  agreement  was 
probably  signed  by  all  the  men  of  the  party, 
and  it  reads  as  follows  :  — 

"In  ye  name  of  God,  Amen.  We  whose 
names  are  underwriten,  the  loyall  subjects  of 
our  dread  soveraigne  Lord,  King  James,  by  ye 
grace  of  God,  of  Great  Britaine,  Franc,  &  Ire- 
land king,  defender  of  ye  faith,  &c,  haveing 
undertaken,  for  ye  glorie  of  God,  and  advance- 
mente  of  ye  Christian  faith,  and  honour  of  our 
king  &  countrie,  a  voyage  to  plant  ye  first  col- 
onie  in  ye  Xortherne  parts  of  Virginnia,  doe  by 
these  presents  solemnly  &  mutualy  in  ye  pres- 
ence of  God,  and  one  of  another,  covenant  & 
combine  our  selves  togeather  into  a  civill  body 
politick,  for  our  better  ordering  &  preservation 
&  furtherance  of  ye  ends  aforesaid ;  and  by 
vertue  hearof  to  enacte,  constitute,  and  frame 
such  just  &  equall  lawes,  ordinances,  acts,  con- 
stitutions, &  offices,  from  time  to  time,  as  shall 
be  thought  most  meete  &  convenient  for  ye 
generall  good  of  ye  colon ie,  unto  which  we 
promise  all  due  submission  and  obedience.     In 

1  Bradford's  History  of  Plymouth  Plantation,  the  2.  Booke. 


142  ESSAYS   ON  GOVERNMENT. 

witnes  wherof  we  have  hereunder  subscribed 
our  names  at  Cap-Codd  ye  11.  of  November, 
in  ye  year  of  ye  raigne  of  our  soveraigne  lord, 
King  James,  of  England,  France,  &  Ireland  ye 
eighteenth,  and  of  Scotland  ye  fiftie  fourth. 
An0:  Dom.  1620." 

The  theory  of  the  social  compact  was  not 
exhausted  by  this  first  experiment,  but  was 
taken  up  by  Hugo  Grotius  in  his  work,  "  De 
Jure  Belli  et  Pacis,"  which  appeared  in  1625. 
He  declares  that  the  mother  of  Natural  Law  is 
human  Nature  itself,  and  the  mother  of  Civil 
Law  is  that  very  obligation  which  arises  from 
consent,  which  deriving  its  force  from  the 
Law  of  Nature,  Nature  may  be  called,  as  it 
were,  the  Great  Grandmother  of  this  Law  also. 
Grotius,  while  inclining  to  absolute  monarchy, 
says  that  the  questions,  in  what  persons  or 
bodies  sovereignty  resides,  how  it  is  limited 
and  divided,  and  whether  there  exists  a  right 
to  resist  and  make  war  upon  the  sovereign,  de- 
pend upon  the  intention  of  the  parties  to  the 
contract.  But  although  he  founds  his  political 
system  on  the  social  compact,  he  dwells  upon 
the  theory  but  little,  and  it  occupies  only  a 
very  small  part  of  his  book.  The  same  thing  is 
true  of  Milton,  who,  in  his  essay  entitled  "The 
Tenure  of  Kings  and  Magistrates,"  and  writ- 
ten in  1649,  in  justification  of   the  execution  of 


THE    THEORY  OF  THE  SOCIAL  COMPACT.    143 

Charles  I.,  traces  the  outlines  of  the  principles 
afterwards  so  fully  developed  by  Locke. 

In  1651  the  social  compact  received  a  new 
and  unexpected  turn  from  the  powerful  intelli- 
gence of  Hobbes  "  the  skeptic."  This  remark- 
able man  wrote  during  the  Commonwealth, 
and  the  aversion  inspired  by  some  of  his  re- 
ligious views  was  increased  to  horror  by  his 
political  theories  ;  for  he  was  an  admirer  of 
absolute  monarch)',  and,  strange  to  say,  he 
made  use  of  the  social  compact  to  support  his 
doctrine  of  the  unlimited  power  of  the  king. 
Hobbes  appears  to  have  been  the  first  person 
who  really  understood  the  difference  between 
law  and  morality,  and  who  saw  clearly  that 
moral  duties  do  not  in  themselves  impose  legal 
obligations,  or  confer  legal  rights.  In  the  "  Le- 
viathan "  he  lays  down  a  series  of  laws  of  na- 
ture, which  he  derives  from  the  desire  for  self- 
preservation  and  from  the  principle  that  each 
man  ought  to  be  willing  in  his  own  interest  to 
strive  for  peace,  and  for  that  end  to  lay  aside 
part  of  his  natural  freedom,  and  be  content 
"  with  so  much  liberty  against  other  men,  as 
he  would  allow  other  men  against  himselfe." 
Thus  he  starts  from  a  purely  self- regarding 
basis,  and  yet  brings  his  precepts  up  to  the 
standard  of  the  golden  rule.  The  laws  of  na- 
ture, he    savs,  are    binding  only   on   the    con- 


144  ESSAYS  ON  GOVERNMENT. 

science  of  the  individual,  and  he  distinguishes 
them  carefully  from  laws,  properly  so  called, 
which  are  "the  word  of  him  that  by  right  hath 
command  over  others ;"  a  doctrine  more  elab- 
orately expounded  by  Austin  in  his  masterly 
work  on  jurisprudence.  From  one  of  his  laws 
of  nature  Hobbes  draws  a  conclusion  which 
is  sufficiently  odd  to  deserve  special  notice. 
He  says  that  where  one  is  trusted  to  judge 
between  man  and  man,  it  is  a  precept  of  the 
law  of  nature  that  he  judge  equally  between 
them.  "And  from  this,"  he  continues,  "  f  ol- 
loweth  another  law,  that  such  things  as  can- 
not be  divided,  be  enjoyed  in  common,"  or  if 
they  can  neither  be  divided  nor  enjoyed  in  com- 
mon, that  the  entire  right  be  determined  by 
lot.  The  lot  may  be  arbitrary  or  natural,  and 
among  natural  lots  he  classes  primogeniture. 
Such  an  explanation  of  the  law  of  primogeni- 
ture is  almost  as  ingenious  as  the  one  given  in 
"  Iolanthe,"  where  the  inheritance  is  likened  to 
a  Derby  Cup,  a  sort  of  racing-prize  won  by  the 
first-born. 

Treating  first  of  the  state  of  nature  where 
"  men  live  without  a  common  power  to  keep 
them  all  in  awe,"  — 

"  Hobbes  clearly  proves  that  every  creature 
Lives  in  a  state  of  war  by  nature,"  — 

a  war   in  which   there  is  no  law,  and    conse- 


THE   THEORY   OF  THE  SOCIAL    COMPACT.    145 

quently  no  injustice ;  in  which  each  man,  being 
bound  only  by  the  duty  of  self-preservation,  is 
at  liberty  to  make  use  of  everything  for  that 
end,  and  in  which,  therefore,  each  man  has  a 
right  to  everything.  It  is  to  get  themselves 
"  out  from  that  miserable  condition  of  warre," 
he  tells  us,  "  that  men,  who  naturally  love  lib- 
erty, are  willing  to  put  a  restraint  upon  them- 
selves and  live  in  commonwealths.  A  man,  he 
adds,  may  renounce  or  transfer  any  portion  of 
his  liberty  or  rights,  and  when  he  has  done  so 
he  is  bound  not  to  hinder  those  to  whom  he  has 
granted  aright  from  enjoying  the  benefits  of  it. 
Any  such  hindrance,  indeed,  would  be  an  injus- 
tice. In  this  way  Hobbes  founds  all  justice  and 
law  on  the  transfer  of  rights,  and  on  that  mu- 
tual transfer  of  rights  which  he  calls  contract. 
Having  thus  laid  his  foundations  by  a  careful 
course  of  reasoning,  he  declares  that  a  common- 
wealth is  "  made  by  covenant  of  every  man 
with  every  man,  in  such  manner,  as  if  every 
man  should  say  to  every  man,  '  I  authorize  and 
give  up  my  right  of  governing  myself,  to  this 
man,  or  to  this  assembly  of  men,  on  this  con- 
dition, that  thou  give  up  thy  right  to  him,  and 
authorize  all  his  actions  in  like  manner.'  This 
done,  the  multitude  so  united  in  one  person 
is  called  a  '  Commonwealth,'  in  Latin  civitas. 
This  is   the  generation   of  that  great  '  Levia- 


146  ESSAYS   ON  GOVERNMENT. 

than,'  or  rather  (to  speak  more  reverently)  of 
that  *  mortal  god,'  to  which  we  owe,  under  the 
'  immortal  God,'  our  peace  and  defense." 

Such  a  description  of  the  institution  of  a 
commonwealth  by  a  common  contract  to  in- 
vest the  sovereign  with  what  may  be  called  a 
universal  power  of  attorney  seems  innocent 
enough,  but  Hobbes  ingeniously  draws  from  it 
some  very  startling  conclusions.  In  the  first 
place,  the  contract  cannot  be  set  aside  without 
the  consent  of  every  one  of  the  contracting  par- 
ties ;  and  certain  rights  having  been  transferred 
to  the  sovereign,  they  cannot  be  withdrawn 
from  him  without  his  own  consent.  In  the 
second  place,  the  power  conferred  upon  the 
sovereign  cannot  be  limited  by  any  condition 
or  covenant  in  favor  of  the  subject,  because 
the  whole  community  cannot  be  a  party  to  such, 
a  covenant,  since  there  is  no  community  until 
the  contract  instituting  the  sovereign  has  been 
made ;  and  if  the  sovereign  make  any  such  cov- 
enant with  individuals  it  is  of  no  avail,  because 
every  breach  of  the  covenant  is  the  act  of  each 
of  those  individuals  done  by  the  sovereign  as 
their  agent.  From  the  same  principle  it  fol- 
lows that  the  sovereign  cannot  wrong  his  sub- 
jects or  be  punished  by  them,  for  each  of  his 
acts  is  the  act  of  his  subjects  themselves.  In 
short,  the  sovereign  must  in  all  cases  be  abso- 
lute, and  his  rights  are  incapable  of  limitation. 


THE   THEORY  OF   THE  SOCIAL    COMPACT.    147 

Hobbes,  like  all  writers  of  his  time,  divides 
governments  into  monarchies,  aristocracies,  and 
democracies;  and  while  it  does  not  strictly  fol- 
low from  his  premises,  he  denies  the  possibility 
of  a  mixed  form.  It  is  perhaps  unnecessary  to 
add  that  lie  regards  the  government  of  England 
as  an  absolute  monarchy. 

Now  although  the  apologists  of  absolute  mon- 
archy were  not  wanting  in  those  days,  the  doc- 
trines of  Hobbes  were  not  generally  adopted  by 
them,  but  the  theory  of  the  social  compact  be- 
came after  his  time  almost  the  exclusive  prop- 
erty of  the  writers  who  maintained  the  rights 
of  the  people.  No  doubt  the  personal  unpopu- 
larity of  Hobbes  contributed  in  no  small  degree 
to  this  result,  for  his  religious  views,  exagger- 
ated as  they  were  by  public  report,  rendered  his 
name  so  detested  as  to  throw  discredit  on  his 
political  theories.  This  was  true  to  such  an  ex- 
tent that  in  1683  the  University  of  Oxford,  in 
an  attempt  to  uphold  Charles  II.  in  his  struggle 
for  absolute  power,  specially  condemned  certain 
of  the  political  doctrines  of  Hobbes,  together 
with  those  of  Milton,  Baxter,  and  other  wTriters 
of  republican  tendencies.  But  the  chief  reason 
that  the  doctrine  of  divine  right  became  the 
weapon  of  the  monarchy,  while  the  theory  of 
the  social  compact  was  monopolized  by  the 
more  democratic  school,  is  to  be  found  in  the 


148  ESSAYS  ON  GOVERNMENT. 

nature  of  that  theory  itself,  and  of  the  times  in 
which  it  prevailed.  There  was  nothing  improb- 
able in  the  claim  of  a  divine  origin  for  the  es- 
tablished order  of  things,  but  it  was  not  reason- 
able to  suppose  that  popular  government,  which 
had  been  almost  unknown  since  the  foundation 
of  Christianity,  was  under  special  divine  pro- 
tection. If,  on  the  other  hand,  the  origin  and 
legality  of  government  could  be  traced  to  the 
consent  of  the  people,  it  was  hardly  credible 
that  the  people  would  have  so  tied  their  own 
hands  as  to  be  unable  to  remedy  abuses  in  the 
system  they  had  instituted  ;  and  it  was  only  na- 
tural that  the  people  should  interpret  the  orig- 
inal contract  according  to  their  present  needs. 
It  is  evident,  moreover,  that  a  theory  which 
magnified  the  importance  of  the  people  in  the 
institution  of  the  state,  and  made  light  of  that 
of  the  king,  was  certain  to  be  popular  with  the 
multitude,  and  to  be  received  with  little  favor 
at  court. 

One  of  the  most  celebrated  writers  of  the 
popular  school  was  the  unfortunate  Algernon 
Sidney,  to  whose  pen  Massachusetts  owes  her 
motto.  Sidney  was  accused  of  connection  with 
the  Rye  House  Plot,  and  at  his  trial  the  manu- 
script of  his  "  Discourses  on  Government "  was 
produced  to  prove  his  political  sentiments,  and 
became,  in  fact,  the  cause  of  his  death.     These 


THE   THEORY  OF  THE  SOCIAL   COMPACT.     149 

"  Discourses  "  were  composed  as  an  answer  to 
the  "  Patriarcha,"  a  highly  monarchical  book, 
written  by  Sir  Robert  Filmer;  but  although 
they  found  all  government  upon  consent,  the 
social  compact  is  very  far  from  being  a  promi- 
nent feature  in  them. 

The  theory,  or  at  least  that  part  of  it  which 
affirms  that  there  is  a  contract  between  the  king 
and  his  people,  came  in  very  conveniently  at  the 
time  of  the  English  Revolution  ;  not,  indeed,  as 
a  motive  for  depriving  James  II.  of  his  throne, 
but  rather  as  a  plausible  justification  for  an  act 
which  the  nation  had  determined  to  commit. 
The  social  compact  helped  to  save  the  country 
at  that  time  from  a  very  great  embarrassment; 
for  the  people  were  not  yet  worked  up  to  the 
point  of  deposing  the  king,  and  if  it  had  not 
been  for  this  theory,  and  for  James's  disinter- 
estedness in  taking  himself  out  of  the  way  at 
the  right  time,  it  is  not  clear  how  the  English 
would  ever  have  got  rid  of  him.  As  it  hap- 
pened, however,  the  Convention  was  able  to 
adopt  the  following  resolution  :  "  That  King 
James  the  Second,  having  endeavoured  to  sub- 
vert the  Constitution  of  the  Kingdom,  by  break- 
ing the  original  Contract  between  Kino-  and 
People,  and  having,  by  the  advice  of  Jesuits, 
and  other  wicked  persons,  violated  the  funda- 
mental Laws,  and  withdrawn  himself  out  of  this 


150  ESSAYS   ON  GOVERNMENT. 

Kingdom,  has  abdicated  the  Government,  and 
that  the  throne  is  thereby  vacant." 

It  was  only  about  two  years  after  James  II. 
had  lost  his  crown  in  this  complicated  way, 
that  John  Locke,  the  philosopher,  published 
his  "  Treatises  on  Government,"  which,  like  Sid- 
ney's "Discourses,"  were  written  as  an  answer 
to  Kilmer's  book,  again  brought  into  promi- 
nence by  the  utterances  of  the  Jacobite  divines. 
These  "Treatises"  are  deeply  imbued  with  the 
spirit  of  the  common  law,  and  may  be  said  to 
have  been  the  standard  of  Whig  principles  for 
a  hundred  years.  Locke  begins  with  the  prop- 
osition—  the  only  one  common  to  all  the  writ- 
ers on  the  social  compact  —  that  in  a  state  of 
nature  all  men  are  equal,  but,  unlike  Hobbes, 
he  is  of  opinion  that  the  law  of  nature  has  a 
binding  force  before  the  institution  of  civil 
societies.  He  declares  that  no  one  ought  to 
injure  another  in  his  health,  liberty,  or  posses- 
sions ;  and  that  inasmuch  as  in  a  state  of  na- 
ture no  one  has  any  superiority  or  jurisdiction 
over  any  one  else,  the  execution  of  the  law  of 
nature  is  put  into  every  man's  hands,  so  that 
every  one  has  a  right  to  punish  the  transgi'es- 
sors  of  that  law.  In  addition  to  this  right, 
which  belongs  to  every  one,  a  person  injured 
has  a  special  right  to  exact  reparation  from  the 
offender.     Locke  derives  the  right  of  property 


THE   THEORY  OF  THE  SOCIAL    COMPACT.     151 

in  the  state  of  nature  from  the  appropriation 
of  such  things  as  before  lay  in  common,  by  be- 
stowing labor  upon  them ;  and  as  examples  of 
this  he  mentions  the  gathering  of  apples  from 
the  trees,  the  killing  of  deer  in  the  chase,  and 
the  tilling  and  planting  of  land.  According  to 
Locke,  therefore,  the  law  of  nature  invests  a 
man  with  all  the  rights  of  person  and  prop- 
erty; and  hence  it  can  be  no  desire  to  acquire 
legal  rights  that  drives  men  into  political  so- 
cieties, but  a  determination  to  protect  and  se- 
cure those  already  in  existence,  and  avoid  that 
state  of  war  which,  although  not  a  necessary 
condition  of  the  state  of  nature,  is  a  condition 
likely  to  arise  from  the  absence  of  a  common 
judge.  A  political  society  is  formed,  he  says, 
when  a  number  of  men  agree  to  give  up  to 
that  society  their  individual  right  of  punishing 
offenders,  and  of  exacting  by  their  own  force 
redress  for  injuries.  In  so  doing  they  consent 
that  the  majority  (unless  there  is  a  stipulation 
for  a  larger  proportion)  shall  have  power  to 
make  and  execute  laws  necessary  to  accomplish 
the  purposes  for  which  the  society  is  formed, 
and  shall  have  authority  to  call  upon  each  man 
to  employ  his  force  to  carry  out  the  judgments 
of  the  society. 

In  the  course  of  his  argument  Locke  takes 
occasion   to  make  a  very  clever  hit  at  the  doc- 


152  ESSAYS   ON   GOVERNMENT. 

trine  of  divine  right  held  by  the  Stuarts;  fur  he 
declares  that  the  difference  between  a  state  of 
nature  and  a  state  of  civil  society  consists  in 
the  fact  that  in  the  latter  there  is  a  known  au- 
thority, to  which  every  man  may  appeal :  and 
he  adds,  that  any  one  who  is  not  subjected  to 
such  an  authority  is  not  in  a  state  of  civil  so- 
ciety. He  then  draws  the  conclusion  that  an 
absolute  prince  is  in  a  state  of  nature  with 
regard  to  his  subjects.  By  becoming  absolute, 
a  prince  forfeits  all  lawful  authority  over  his 
subjects,  and  ceases  to  be  a  prince  at  all.  The 
course  of  a  monarch  who  aspires  to  be  abso- 
lute resembles,  in  Locke's  opinion,  one  of  those 
games  of  chance,  in  which  the  player  progresses 
until  a  throw  of  the  dice  brings  him  upon  a 
number  marked  with  a  ditch  or  other  device, 
when  he  is  cast  entirely  out  of  the  game,  and 
must  begin  again  at  the  very  beginning. 

Locke  goes  on  to  discuss  the  position  of  the 
descendants  of  the  original  members  of  the  so- 
ciety, and  in  this  matter  he  is  more  logical  than 
the  other  writers  upon  the  subject ;  for,  basing 
the  society  upon  the  consent  of  the  individ- 
uals who  compose  it,  he  boldly  proclaims  that 
no  man  can  bind  his  children  beyond  the  pe- 
riod of  their  infancy,  and  that  as  each  child 
comes  of  age  he  is  free  to  sever  his  connection 
with  the  society,  or  to  declare  himself  irrevo- 


THE    THEORY   OF  THE  SOCIAL    COMPACT.    153 

cably  a  member  of  it.  Even  without  such  a 
declaration,  a  person  who  takes  possession  of 
property  within  the  commonwealth,  or  who  re- 
sides within  its  limits,  consents  to  become  a 
member  of  the  society  so  long  as  the  enjoy- 
ment or  residence  continues  ;  but  he  may  at 
any  time  dispose  of  his  property,  leave  the  com- 
monwealth, and  attach  himself  to  another  com- 
munity. 

After  the  State  is  created,  the  majority  have 
power  to  determine  the  form  of  government; 
and  this  may  be  a  democracy,  an  oligarchy,  or 
a  monarchy,  according  to  the  character  of  the 
body  to  which  the  power  of  making  laws  is 
intrusted.  When  once  established  the  legisla- 
ture cannot  be  deprived  of  its  power  by  the 
people,  unless  it  acts  contrary  to  its  trust,  or 
until  it  has  reached  the  limits  set  for  its  con- 
tinuance; but  if  the  legislature  has  put  the  ex- 
ecutive power  into  other  hands,  it  may  resume 
that  power  at  its  pleasure,  and  punish  for  mal- 
administration of  the  laws. 

The  subject,  however,  that  interests  us  the 
most  is  to  be  found  in  the  chapter  which  treats 
"Of  the  Extent  of  the  Legislative  Power;" 
for,  in  Locke's  opinion,  the  authority  of  the 
legislature  is  not  absolute,  but  limited  by  the 
object  for  which  men  entered  into  society.  Me 
declares  that  the  legislature  cannot  be  "  abso- 


154  ESS  ATS   ON  GOVERNMENT. 

lutely  arbitrary  over  the  lives  and  fortunes  of 
the  people,"  and  that  it  "  cannot  assume  to  it- 
self a  power  to  rule  by  extemporary,  arbitrary 
decrees  ;  but  is  bound  to  dispense  justice,  and 
to  decide  the  rights  of  the  subject,  by  promul- 
gated, standing  laws,  and  known  authorized 
judges ; "  because  it  was  precisely  a  desire  to 
avoid  the  inconveniences  of  having  no  fixed 
laws  and  no  certain  judge  that  induced  men  to 
form  a  political  union.  On  the  same  ground 
he  holds  that  the  "  supreme  power  cannot  take 
from  any  man  part  of  his  property  without  his 
own  consent:  for  the  preservation  of  property" 
is  "  the  end  of  government ;  and  that  for  which 
men  enter  into  society." 

Locke  proceeds  to  consider  the  effect  of  acts 
of  the  executive  and  of  the  legislature  done  in 
excess  of  their  authority,  and  in  a  chapter  de- 
voted to  the  subject  of  tyranny  lays  down  the 
general  proposition  that  "  whosoever  in  author- 
ity exceeds  the  power  given  him  by  the  law, 
and  makes  use  of  the  force  he  has  under  his 
command,  to  compass  that  upon  the  subject 
which  the  law  allows  not,  ceases  in  that  to  be  a 
magistrate;  and  acting  without  authority,  may 
be  opposed  as  any  other  man  who  by  force  in- 
vades the  right  of  another."  In  his  concluding 
chapter  on  the  "  Dissolution  of  Government," 
he  carries  the  same  idea  still  further,  and  finds 


THE  THEORY   OF  THE  SOCIAL   COMPACT.    155 

two  internal  causes  of  dissolution.  The  first 
of  these  is  presented  when  the  legislature  is  al- 
tei-ed  ;  and  this  happens  when  any  single  person 
sets  up  his  own  will  in  place  of  the  laws,  hin- 
ders the  meeting  of  the  legislature,  or  changes 
the  mode  of  election  without  the  consent  of  the 
people.  In  this  and  in  all  other  cases  where 
the  existing  government  is  dissolved,  the  peo- 
ple are  at  liberty  to  provide  for  themselves  a 
new  one.  The  other  cause  of  dissolution  occurs 
when  the  legislators  or  the  prince  act  contrary 
to  their  trust ;  and  the  former  act  "  against  the 
trust  reposed  in  them,  when  they  endeavour  to 
invade  the  property  of  the  subject,  and  to  make 
themselves,  or  any  part  of  the  community,  mas- 
ters, or  arbitrary  disposers  of  the  lives,  liber- 
ties, or  fortunes  of  the  people."  "  Whenever 
the  legislators  endeavour  to  take  away  and  de- 
stroy the  property  of  the  people,  or  to  reduce 
them  to  slavery  under  arbitrary  power,  they 
put  themselves  into  a  state  of  war  with  the 
people,  who  are  thereupon  absolved  from  any 
farther  obedience,  and  are  left  to  the  common 
refuge,  which  God  hath  provided  for  all  men, 
against  force  and  violence." 

In  reading  Locke  we  cannot  fail  to  be  struck 
with  the  resemblance  between  some  of  his  de- 
ductions and  the  doctrines  of  our  own  jurists; 
and  we  might  almost  suppose  that  the  "Trea- 


156  ESSAYS   ON  GOVERNMENT. 

tises  on  Government  "  were  intended  to  be  a 
commentary  on  the  principles  of  American  Con- 
stitutional Law.  For,  in  fact,  the  idea  that  a 
statute  which  conflicts  with  the  constitution 
is  invalid  and  has  no  legal  effect  was  by  no 
means  a  pure  invention  on  the  part  of  Chief 
Justice  Marshall,  as  has  often  been  supposed, 
but  is  a  very  natural  development  of  certain 
principles  of  the  English  common  law. 

In    the   seventeenth   century  England  went 
through  a  period  of  intense  political  excitement 
which   culminated  in   the   expulsion   of  James 
II.,  and  during  this  time  political  thought  was 
very  philosophical,  and   busied   itself  with  in- 
quiries about  the  nature  and  origin  of  govern- 
ment.    But  when   the  excitement   subsided  in 
the  reigns  of  William  and  of  Anne,  and  was 
finally  extinguished  under  the  House  of   Hano- 
ver, political  thought  adapted  itself  to  circum- 
stances,  and,  putting   off   the   speculative,  as- 
sumed a   positive  form.     It  is  for  this  reason 
that   the  theory  of  the  social  compact  rapidly 
lost    its   prominence  in   England,    and   in    the 
reigns  of  the  Georges  disappeared  entirely  from 
view.     In  France,  on  the  contrary,  the  middle 
of  the  eighteenth  century  saw  political  thought 
enter  on  a  course  of  active  speculation,  and  in 
consequence  the  social  compact  reappeared  with 
renewed  force  and  in  the  old  form,  although, 


THE   THEORY  OF  THE  SOCIAL   COMPACT.     157 

chameleon-like,  it  lmd  changed  its  color  to  suit 
its  new  surroundings.  Montesquieu,  the  most 
profound  political  thinker  of  his  day,  makes,  it 
is  true,  no  use  of  the  theory  —  a  fact  which 
illustrates  his  strong  common  sense.  His 
shrewdness,  indeed,  is  nowhere  better  shown 
than  in  his  remarks  upon  Hobbes's  notion  that 
the  state  of  nature  was  a  state  of  war ;  for  he 
wisely  suggests  that  man  in  a  wild  condition, 
instead  of  living  in  a  state  of  war,  lived  in  a 
state  of  abject  terror,  and  that  on  seeing  a 
stranger  his  first  impulse,  far  from  being  a  pas- 
sion to  fight,  was  probably  an  uncontrollable 
desire  to  run  'away.  Rousseau,  on  the  con- 
trary, reveled  in  the  theory  of  the  social  com- 
pact. In  it  he  thought  he  had  discovered  the 
key  to  liberty,  and  the  lamp  that  was  to  dispel 
all  ignorance  and  oppression  from  the  world. 
He  developed  it  in  a  style  so  attractive,  and  in 
a  spirit  so  much  in  sympathy  with  the  feelings 
that  were  beginning  to  spread  over  Europe, 
that  his  book  by  its  popularity  has  eclipsed  all 
other  works  upon  the  subject,  and  he  is  com- 
monly supposed  to  have  been  the  author  of  the 
theory.  Rousseau's  "Contrat  Social"  was  first 
published  in  1TG2,  :ind  just  as  Locke's  "Trea- 
tises" are  saturated  with  the  principles  of  the 
common  law,  so  the  "■Contrat  Social"  fore- 
shadows  the  doctrines  of   the  coming   Re  vol  u- 


158  ESSAYS  ON   GOVERNMENT. 

tion.1  It  is  very  evident  to-day  that  France, 
so  long  accustomed  to  a  concentrated  and  des- 
potic government,  could  not  suddenly  acquire 
the  habits  of  personal  independence  and  liberty 
to  which  the  Anglo-Saxon  system  of  govern- 
ment owes  its  character.  After  clearing  away 
the  wreck  of  feudalism,  which  had  become  a 
mere  obstruction  in  the  path  of  progress,  and 
introducing  equality  of  civil  rights,  the  French 
Rt- volution  was  destined  to  leave  political  power 
as  concentrated  and  despotic  as  before,  only 
substituting  for  the  ancient  king  some  assem- 
bly, directory,  emperor,  or  at  the  very  best 
some  chance  popular  majority ;  and  no  one  of 
these,  however  wise  and  just,  however  devoted 
to  the  welfare  of  the  people,  could  fail  to  be  an 
autocrat. 

1  The  differences  between  Rousseau's  teaching  and  the  course  of 
events  in  the  French  Revolution  are  more  apparent  than  real. 
His  one  restriction,  for  example,  on  the  power  of  the  people  is  to 
be  found  in  his  doctrine  that  no  law  can  be  made  which  is  not  of 
general  application;  but  this,  of  course,  could  not  be  applied  in 
any  country  where  the  reverence  for  law  was  no  greater  than  it 
was  in  France,  and  it  was  especially  valueless  in  a  country  where 
so  much  legislation  was  in  reality  accomplished  by  the  decrees 
of  the  magistrates.  His  theory  that  nothing  can  be  enacted  ex- 
cept directly  by  an  assembly  of  the  whole  people  may,  perhaps, 
have  contributed  to  the  contempt  with  which  the  mob  of  Paris 
treated  the  national  legislature,  but  was  clearly  inapplicable  to  a 
land  of  anything  like  the  size  of  France.  His  admiration  of  the 
state  of  nature,  and  his  belief  that  civilization  had  been  rather  a 
curse  than  a  blessing,  could  not  fail  to  have  a  disintegrating  ten- 
dency among  a  people  unused  to  self-government. 


THE    THEORY  OF  THE  SOCIAL   COMPACT.     159 

Assuming,  like  every  other  writer  on  the 
social  compact,  that  all  men  are  by  nature  free, 
and  that  civil  society  is  an  artificial  contrivance, 
which  requires  for  its  legality  the  consent  of 
every  member,  Rousseau  inquires  how  a  man 
can  assent  to  such  an  arrangement  without  in- 
juring himself  or  neglecting  his  own  interests, 
and  he  proposes  the  following  problem  :  To  find 
a  form  of  association  which  shall  defend  and 
protect  with  the  whole  power  of  the  community 
the  person  and  property  of  each  member,  and 
by  which  each  person,  uniting  with  all,  never- 
theless obeys  only  himself,  and  remains  as  free 
as  he  was  before.  This  problem  he  solves  by 
supposing  a  complete  transfer  of  each  member, 
with  all  his  rights,  to  the  society;  because,  he 
says,  since  each  man  gives  himself  entirely  to 
the  whole  society,  he  gives  himself  to  no  in- 
dividual, and  the  condition  of  all  being  the 
same,  no  one  has  any  interest  to  render  it 
burdensome  for  any  one  else.  In  another 
place  he  expresses  his  idea  of  the  original  con- 
tract by  saying  that  each  one  of  us  puts  him- 
self and  all  his  powers  under  the  direction  of 
the  general  will  (volontS  gen6rale),  and  we 
receive  again  each-  member  as  an  indivisible 
part  of  the  whole.  The  idea  of  this  general 
or  common  will  which,  as  we  shall  see,  is  also 
the  will  of  each  individual,  is  the  distinctive 


160  ESSAYS  ON  GOVERNMENT. 

part  of  Rousseau's  theory  and  the  keystone  of 
his  whole  system. 

Rousseau  next  treats  of  the  sovereign,  which 
is  simply  this  same  society  as  a  whole  consid- 
ered in  relation  to  its  members  ;  and  in  his 
opinion,  it  is  contrary  to  the  nature  of  the  body 
politic  that  the  sovereign  should  be  able  to  im- 
pose upon  himself  a  law  which  he  cannot  break, 
for  it  would  be  simply  a  case  of  an  individual 
binding  himself  by  a  contract  made  only  with 
himself.  He  adds  later  that  as  a  citizen  in  obey- 
ing the  law  obeys  only  his  own  will,  no  ques- 
tion of  a  limit  to  legislative  power  can  arise. 
No  fundamental  law  of  any  kind,  therefore,  can 
be  binding  upon  the  body  of  the  people  ;  not 
even  the  social  compact  itself.  A  guarantee 
against  the  sovereign  power  is  unnecessary,  be- 
cause the  sovereign,  being  composed  of  all  the 
members  of  the  community,  can  never  want 
to  injure  them  as  a  whole,  nor  can  it,  he  says, 
injure  particular  individuals.  The  sovereign, 
from  the  mere  fact  that  he  exists,  is  always 
what  he  should  be.  These  last  two  propositions, 
although  at  first  sight  somewhat  surprising,  are 
deduced  from  the  very  nature  of  sovereignty 
itself,  which  is  nothing  else  than  the  aforesaid 
general  will.  This  general  will,  however,  does 
not  mean  simply  the  common  will  of  the  mem- 
bers of  the  society,  but  is  used  in  a  more  re- 


THE   THEORY  OF   THE  SOCIAL   COMPACT.    161 

sfcricted  sense,  and  denotes  the  common  will  of 
those  members  only  when  applied  to  an  ab- 
stract or  general  question  affecting  the  whole 
community.  When  the  common  will  is  ap- 
plied to  an  object  of  this  sort,  it  is  an  act  of 
sovereignty,  and  is  called  a  law  ;  but  a  deter- 
mination upon  any  particular  or  personal  matter 
cannot  be  an  act  of  the  general  will,  because  in 
such  a  case  there  are  two  parties,  the  individual 
and  the  state,  who  have  not  a  common  interest 
and  cannot  have  a  common  will.  The  will  of 
the  latter  is  not  general  with  regard  to  the 
former,  but  is  to  him  as  the  will  of  a  stranger, 
and  since  it  is  only  to  the  general  will  that  the 
members  of  the  society  agree  to  submit  them- 
selves, a  determination  of  this  kind  cannot  be 
an  act  of  sovereignty.  Rousseau  refuses,  there- 
fore, to  consider  as  laws  at  all  what  we  terra 
special  or  private  laws  ;  at  most  they  are  de- 
crees or  acts  of  the  magistrates  which  must 
follow  the  provisions  of  general  laws.  The 
question  naturally  presents  itself,  What  is  this 
general  will,  and  who  has  power  to  declare  it? 
To  this  Rousseau  replies  that  it  is  the  will  of 
the  members  of  the  community,  and  that  no 
one  else  h:is  power  to  declare  it ;  nor  can  it  be 
delegated,  because,  although  a  man  may  say 
that  his  will  is  the  same  as  that  of  another  man 
at  any   particular   moment,  or  on  any  specific 


162  ASSAYS   ON  GOVERNMENT. 

question,  yet  he  cannot  say  that  his  will  in  the 
future,  and  on  any  questions  that  may  here- 
after arise,  will  always  be  the  same  as  that  of 
another  person.  It  follows  that  the  power  of 
making  laws  can  be  delegated  neither  to  a 
prince  nor  to  a  house  of  representatives,  and, 
while  laws  may  be  prepared  and  discussed  by 
them,  they  cau  be  enacted  only  by  all  the  mem- 
bers of  the  community,  duly  assembled  for  the 
purpose.  For  this  reason  Rousseau  declares 
that  the  English,  who  bosist  of  their  liberty,  in 
reality  are  not  free. 

Now  it  is  all  very  well  to  talk  of  the  general 
will,  as  if  laws  were  voted  unanimously,  but 
every  one  knows  that  this  is  not  the  case;  and 
to  keep  up  his  fiction  that  each  person  obeys 
only  himself,  and  at  the  same  time  to  give  to 
the  majority  the  power  of  legislation,  Rous- 
seau develops  a  most  ingenious  idea.  He  says 
that  each  man  desires  the  fulfillment  of  the  gen- 
eral will,  and  that,  when  a  law  is  submitted  to 
the  people,  the  question  put  to  each  man  is  not 
strictly  whether  he  approves  of  the  law  or  not, 
but  whether  it  is  in  accordance  with  the  gen- 
eral will  which  he  wishes  to  carry  out.  Each 
man  gives  his  advice  thereon,  and  if  a  man  is 
in  the  minority  it  simply  proves  that  he  was 
mistaken  about  the  general  will ;  so  that  if  by 
chance   his    opinion    had    prevailed,   he   would 


THE   THEORY  OF  THE  SOCIAL   COMPACT.    163 

have  done  what  he  did  not  want  to  do.  A  very 
comforting  doctrine,  no  doubt,  to  sweeten  a  bit- 
ter pill. 

Sovereignty  being  confined  to  the  enactment 
of  laws,  it  is  evident  that  there  must  exist  in 
the  state  subordinate  authorities,  charged  with 
the  duty  of  executing  the  laws,  carrying  on 
foreign  relations,  etc. ;  and,  as  these  duties  do 
not,  in  Rousseau's  opinion,  partake  of  the  na- 
ture of  sovereignty,  he  rejects  the  doctrine  of 
the  separation  of  executive,  legislative,  and 
judicial  powers,  as  advanced  by  Montesquieu. 
He  divides  governments  into  monarchies,  aris- 
tocracies, democracies,  and  mixed  forms,  ac- 
cording to  the  composition  of  the  subordinate 
authorities.  These  are  established  by  laws, 
but  the  selection  of  the  persons  to  fill  the  va- 
rious offices,  being  a  particular  and  personal 
matter,  is  not  an  act  of  sovereignty,  and  must 
be  accomplished  by  election,  by  lot,  or  by  some 
other  method  fixed  by  law.  The  powers  and 
rights  of  these  authorities  cannot  rest  upon  con- 
tract, because  the  sovereignty  cannot  be  alien- 
ated or  limited,  and  hence  the  public  officers, 
and  even  the  form  of  the  government,  may  be 
changed  at  any  time  by  an  exercise  of  the  gen- 
eral will.  The  author  of  the  "Contrat  S  )cial" 
is  very  decided  on  this  point,  and  says  that 
every    assembly    of    the    people    ought    to    be 


164  ESSAYS   ON  GOVERNMENT. 

opened  with  these  two  questions :  Is  it  the 
pleasure  of  the  sovereign  to  continue  the  pres- 
ent form  of  government*?  Is  it  the  pleasure 
of  the  people  to  leave  in  office  the  present  in- 
cumbents ?  One  can  hardly  imagine  a  greater 
encouragement  to  revolution,  or  a  more  effec- 
tive manner  of  bringing  all  citizens  to  the 
polls. 

Rousseau  sees  merits  and  faults  in  each  form 
of  government,  and  wisely  concludes  that  the 
best  one  is  not  the  same  in  every  country,  but 
varies  with  the  climate,  the  extent  of  the  terri- 
tory, and  the  habits  of  the  people. 

The  apostle  of  liberty  makes  a  most  surpris- 
ing application  of  his  views  on  absolute  sover- 
eignty, at  the  end  of  his  book,  when  discussing 
the  religious  question.  He  thinks  that  there 
ought  to  be  a  state  religion,  which  every  one 
must  accept  on  pain  of  banishment.  He  pro- 
poses to  allow  no  further  persecution  on  this 
ground,  but  adds  that  if  any  person,  after  hav- 
ing declared  his  belief  in  the  state  religion,  be- 
haves as  if  he  did  not  believe  in  it,  he  ought  to 
be  punished  with  death,  because  he  has  com- 
mitted the  gravest  of  crimes  :  he  has  lied  be- 
fore the  law.  He  enumerates  the  positive  dog- 
mas which  this  religion  should  contain,  and 
among  them  is  to  be  found  the  sacredness  of  the 
social  compact.     There  is  also  a  negative  one, 


THE  THEORY   OF  THE  SOCIAL   COMPACT.    165 

the  condemnation  of  intolerance,  and  on  the 
strength  of  this  he  insists  that  whoever  says 
there  is  no  salvation  outside  of  the  church 
ought  to  be  driven  from  the  state.  In  this 
way,  Rousseau  would  prevent  religious  intoler- 
ance by  making  persecution  a  state  monopoly. 
Such  must  have  been  the  motive  of  the  gov- 
erning board  of  a  certain  college  in  America, 
which  was  for  many  years  accused  of  filling  its 
vacancies  exclusively  with  persons  of  one  de- 
nomination, not  with  any  sectarian  purpose,  but 
merely  for  fear  that  if  a  person  of  a  different 
faith  were  admitted  he  would,  try  to  fill  the 
board  with  members  of  his  own  church.  I  do 
not  assert  that  the  charge  wTas  true,  but  it  was 
certainly  somewhat  amusing. 

It  is  singular  that  among  all  the  consti- 
tutions  in  which  the  revolutionary  period  in 
France  was  so  prolific,  there  is  no  reference  to 
the  social  compact ;  and  it  is  even  more  strange 
that  these  documents  treat  of  the  matter  of 
private  rights  rather  from  an  English  than  a 
French  point  of  view.  A  superficial  observer, 
who  should  compare  the  Constitution  of  the  3d 
of  September,  1791,  with  the  Constitution  of 
Massachusetts  might  well  doubt  which  was  the 
French  and  which  the  American  production. 
The  Frenchman  solemnly  condemns  arbitrary 
punishment ;  proclaims  the  sacredness  of  pri- 


166  ESSAYS   ON  GOVERNMENT. 

vate  property,  insisting  that  it  can  never  be 
taken  except  in  case  of  public  necessity,  and 
then  only  upon  clue  compensation;  and  declares 
that  the  legislature  has  no  authority  to  pass  a 
law  violating  any  of  the  rights  guaranteed  by 
the  Constitution  ;  but  yet  it  is  not  long  before 
he  votes  to  execute  the  king  and  to  confiscate 
the  property  of  the  enriyre*.  The  fact  is  that 
Rousseau  sympathized  with  the  political  senti- 
ments of  France  far  more  than  the  Abbe  Sieyes 
and  his  fellow  constitutional  architects,  while 
the  French  people  were  much  more  readily  in- 
spired by  the  theories  of  Rousseau  than  by  the 
statesmanship  of  Mirabeau. 

The  great  theory  was  not  so  neglected  by  the 
constitution-makers  on  this  side  of  the  ocean  ; 
for,  as  the  first  social  compact  known  to  history 
was  made  by  the  Pilgrim  Fathers  in  the  cabin 
of  the  Mayflower,  so  the  most  elaborate,  if  not 
the  last,  was  made  in  part  by  the  descendants 
of  these  same  men,  and  entitled  the  Constitu- 
tion of  the  Commonwealth  of  Massachusetts. 
Evidently  this  relapsing  into  a  state  of  barba- 
rism and  recovering  one's  self  by  means  of  a 
social  compact  was  a  favorite  pastime  with  the 
New  Englandei's. 

The  second  and  third  clauses  of  the  preamble 
of  the  Constitution  run  thus  :  — 

"  The  body  politic  is  formed  by  a  voluntary 


THE  THEORY  OF   THE  SOCIAL  COMPACT.     167 

association  of  individuals  :  ifc  is  a  social  com- 
pact, by  which  the  whole  people  covenants  with 
each  citizen,  and  each  citizen  with  the  whole 
people,  that  all  shall  be  governed  by  certain 
laws  for  the  common  good.  It  is  the  duty  of 
the  people,  therefore,  in  framing  a  constitution 
of  government,  to  provide  for  an  equitable  mode 
of  making  laws,  as  well  as  for  an  impartial  in- 
terpretation, and  a  faithful  execution  of  them  ; 
that  every  man  may,  at  all  times,  find  his  secu- 
rity in  them. 

"  We,  therefore,  the  people  of  Massachusetts, 
acknowledging,  with  grateful  hearts,  the  good- 
ness of  the  great  Legislator  of  the  universe,  in 
affording  us,  in  the  course  of  His  providence,  an 
opportunity,  deliberately  and  peaceably,  with- 
out fraud,  violence,  or  surprise,  of  entering  into 
an  original,  explicit,  and  solemn  compact  with 
each  other ;  and  of  forming  a  new  constitution 
of  civil  government,  for  ourselves  and  poster- 
ity ;  and  devotedly  imploring  His  direction  in 
so  interesting  a  design,  do  agree  upon,  or- 
dain, and  establish,  the  following  Declaration 
of  Rights,  and  Frame  of  Government,  as  the 
Constitution  of  the  Commonwealth  of 
Massachusetts." 

Then  follows  the  Declaration  of  Rights,  in 
which  it  is  impossible  not  to  see  the  influence 
of  Rousseau  curiously  combined  with  the  prin- 


168  ESSAYS  ON  GOVERNMENT. 

ciples  of  the  common  law,  of  Magna  Charta, 
and  of  the  Bill  of  Rights ;  for  although  our  an- 
cestors were  deeply  imbued  with  ideas  which 
found  their  theoretical  expression  in  Locke's 
"  Treatises  on  Government,"  their  imagination 
was  fired  by  the  writings  of  the  French  phi- 
losophers. From  Montesquieu  they  borrowed 
the  doctrine  of  the  separation  of  powers,  which 
has  become  so  thoroughly  a  part  of  the  Amer- 
ican political  system,  and  in  fact  they  accepted 
abstract  theories  as  the  basis  of  their  political 
practice  to  a  far  greater  extent  than  any  other 
body  of  Anglo-Saxons  has  ever  done  before  or 
since.  This  is  evident  even  in  the  very  word- 
ing of  the  Declaration  of  Rights  which  we  are 
considering;  for  when  an  assembly  wishes  to 
declare  the  existence  of  a  right  which  is  not 
dependent  upon  its  own  action,  it  naturally 
uses  the  present  tense,  thus,  "Every  man  has  a 
right ;  "  but  if,  on  the  other  hand,  the  assembly 
wishes  to  create  a  right,  it  uses  what  I  ma\r  call 
the  future  imperative,  and  says,  "  Every  man 
shall  have  a  right."  The  first  of  these  forms  is 
appropriate  in  making  a  statement,  while  the 
second  is  the  language  of  command.  Now  it  is 
worthy  of  remark  that  the  French  legislators 
usually  employ  the  former  expression,  while  the 
Anglo-Saxon,  both  in  statutes  and  constitu- 
tions, make  use  almost    invariablv  of  the  lat- 


THE    THEORY   OF   THE  SOCIAL    COMPACT.     lt)9 

ter.  The  Massachusetts  Declaration  of  Rights, 
however,  proclaims  these  rights  in  the  present 
tense,  with  an  occasional  relapse  into  the  future, 
especially  when  treating  of  matters  of  detail. 

The  Constitution  of  Massachusetts  was  not 
the  last  nor  the  most  extraordinary  application 
of  the  social  compact  in  this  country,  for  the 
rage  for  crude  theory  at  one  time  attacked  the 
bench,  and  grave  judges  were  heard  to  say  that 
a  statute  was  invalid  if  repugnant  to  the  prin- 
ciples of  justice  and  civil  liberty.  Even  Judge 
Story  was  carried  away  by  this  idea,  and  used 
very  loose  language  on  the  subject ;  though  he 
never  went  quite  so  far  as  Chief  Justice  Hos- 
mer  of  Connecticut,  who  said,  in  one  case,1 
"With  those  judges,  who  assert  the  omnipo- 
tence of  the  legislature,  in  all  cases,  where  the 
Constitution  has  not  interposed  an  explicit  re- 
straint, I  cannot  agree.  Should  there  exist, 
what  I  know  is  not  only  an  incredible  suppo- 
sition, but  a  most  remote  improbability,  a  case 
of  the  direct  infraction  of  vested  rights,  too 
palpable  to  be  questioned,  and  too  unjust  to 
admit  of  vindication,  I  could  not  avoid  con- 
sidering it  as  a  violation  of  the  social  compact, 
and  within  the  control  of  the  judiciary."  At 
first  sight  this  appears  to  be  merely  a  ridiculous 

1  Goshen  v.  Stonington,  4  Conn.  Hep.  209,  at  -2-25.     See  also  the 
cases  collected  in  Cooley  on  Constitutional  Limitations,  1G4  tt  seq. 


170  ESSAYS   ON   GOVERNMENT. 

attempt  to  engraft  a  new  doctrine  upon  the 
common  law,  but  however  absurd  the  attempt 
may  have  been,  it  was  in  reality  a  logical  de- 
duction from  the  teachings  of  John  Locke,  and 
was  not  so  unprecedented  as  one  might  sup- 
pose. It  was,  indeed,  long  doubtful  in  Eng- 
land whether  the  courts  had  not  authority  to 
disregard  an  act  of  Parliament,  if  they  consid- 
ered it  against  natural  equity  or  common  right 
and  reason,  because,  in  the  words  of  Hobart, 
"jura  naturae  sunt  immutabilia,  and  they  are 
leges  legum?'  Such  a  power  was  frequently 
claimed  by  the  judges,1  and  in  one  case,2  at 
least,  Lord  Coke  actually  refused  to  apply  an 
act  of  Parliament,  on  the  ground  that  it  made 
a  nan  a  judge  in  his  own  case.  Although  the 
claim  was  abandoned  by  the  judges  early  in 
the  last  century,  yet  the  doctrine  that  the  legis- 
lature must  respect  private  lights,  and  that  no 
one  ought  to  be  deprived  of  his  property  with- 
out compensation,  remained  a  cardinal  principle 
of  English  legislation  until  within  the  last  few 
years.  This  principle  is  protected  in  America 
by  the  various  constitutions,  and  it  has  been 
settled  that  the  courts  have  power  to  disregard 

1  See  Doctor  and  Student,  c.  vi.  ;  Day  v.  Savadge,  Hobart.  85, 
at  87  ;  Calvin's  Case,  7  Rep.  1,  at  13  b  and  14  a;  City  of  London 
v.  Wood,  12  Mod.  6G9,  at  687. 

2  Bonham's  Case,  8  Rep.  114  a. 


THE  THEORY  OF  THE  SOCIAL    COMPACT.     171 

a  statute  only  when  it  conflicts  with  some  pro- 
vision in  these  instruments.  Hosmer's  theory- 
has  been  entirely  exploded,  and  the  spectre  of 
a  social  compart  has  long  ceased  to  disturb  the 
quiet  labors  of  the  bench.1 

I  have  so  far  made  no  reference  to  the  Ger- 
man writers,  not  because  they  do  not  deal  with 
the  social  compact,  for  after  the  middle  of  the 
seventeenth  century  almost  all  of  them  devoutly 
believed  in  it.  In  fact,  they  entirely  adopted 
and  Germanized  it,  or,  as  some  malicious  critic 
might  say,  in  the  words  of  Sheridan,  they 
treated  it  as  gypsies  do  stolen  children,  —  dis- 
figured it  to  make  it  pass  for  their  own.  There, 
are  two  reasons  why  I  have  not  mentioned  the 
German  writers  before.  The  first  is  the  lack  of 
space  in  this  sketch  to  touch  upon  any  one  but 
Kant,  the  most  famous  of  them  all,  and  his 
writings  are  later  than  those  we  have  so  far 
considered.  A  second  reason  is  the  existence 
of  certain  peculiarities  of  thought  characteris- 
tic of  the  Germans,  which  are  not  to  be  found 
among  the  really  great  writers  of  other  races, 
and  which  may  be  in  some  mensure  explained 
by  the  political  condition  of  the  German  peo- 
ple. The  most  marked  of  the  peculiarities  to 
which  I  refer  is  a  tendency  to  confuse  morality 

1  That  this  doctrine  has  not  yet  completely  lost  its  hold  on  the 
public  is  proved  by  the  correspondence  in  The  Nation  last  winter. 


172  ESSAYS   ON   GOVERNMENT. 

and  law.  This  may  be  said  to  be  a  universal 
failing  with  the  German  publicists,  and  it  is 
this,  more  than  anything  else,  that  makes  their 
writings  so  difficult  to  read,  and  so  unsatisfac- 
tory when  read.  Another  peculiarity,  which, 
although  not  so  general,  is  nevertheless  very 
common  with  the  Germans,  is  the  attempt  to 
combine  in  the  same  political  system  certain 
inviolable  natural  rights  of  individual  citizens 
with  an  unlimited  authority  on  the  part  of  the 
sovereign.  Hobbes  and  Rousseau,  while  differ- 
ing so  much  in  their  views,  agree  in  attributing 
absolute  authority  to  the  sovereign  power  in 
the  state,  and  declare  that  the  rights  of  the 
subject  are  created  by  and  are  dependent  upon 
its  will.  Locke  and  our  own  forefathers,  on 
the  contrary,  start  with  certain  natural  legal 
rights  possessed  by  the  citizens  as  individuals, 
limit  the  authority  of  the  sovereign  power  ac- 
cordingly, and  maintain  that  any  attempt  on 
its  part  to  violate  these  rights  is  itself  unlaw- 
ful. But  the  Germans,  in  trying  to  reconcile 
the  unlimited  power  of  the  state  with  the  in- 
violable rights  of  the  citizens,  only  puzzle  them- 
selves afresh  with  the  old  conundrum,  —  what 
would  happen  if  an  irresistible  force  should 
meet  an  immovable  obstacle? 

I  have  said  that  these  peculiarities  of  thought 
can  be  explained  to  some  extent  by  the  condi- 


THE   THEORY  OF   THE  SOCIAL   COMPACT.    173 

tion  of  the  German  race.  The  people  had  been 
so  long  unaccustomed  to  taking  any  part  in  the 
discussion  of  political  affairs,  and  were  so  un- 
used to  transacting  public  business  on  juries, 
etc.,  that,  with  a  type  of  mind  naturally  meta- 
physical, they  very  easily  fell  into  an  exces- 
sively abstract  and  theoretical,  as  distinguished 
from  a  positive  and  practical,  way  of  looking  at 
political  problems.  It  was  but  natural  that  the 
German  philosopher  should  not  clearly  separate 
the  study  of  law  as  it  is  from  the  study  of  law 
as  it  should  be,  and  this  is  but  a  step  from  the 
confusion  of  law  and  morality.  It  was  inevi- 
table that  he  should  fail  to  appreciate  the 
bearing  of  public  policy  on  legal  questions,  and 
should  strive  to  found  his  legal  system  on  d 
priori  reasoning ;  that,  to  adopt  an  expression 
of  Judge  Holmes,1  we  should  find  a  character- 
istic yearning  in  the  German  mind  for  an  in- 
ternal juristic  necessity  for  law.  The  intro- 
duction of  the  Roman  law  probably  contributed 
in  some  degree  to  these  results ;  for  it  is  to  be 
observed  that  this  law  did  not  come  to  the 
Germans  as  it  did  to  the  Romans,  in  the  form 
of  a  slow  growth,  but  was  received  as  a  com- 
plete system,  and  was  accepted,  not  on  account 
of  the  veneration  which  is  derived  from  long 
habit  and  association,  but  because  the  German 

1  Holmes  on  the  Common  Law,  page  207. 


174  ESSAYS   ON  GOVERNMENT. 

jurists  were  struck  by  the  inherent  justice  of 
its  principles.  A  person  who  confuses  the  posi- 
tive law  with  law  as  it  should  be,  is  easily  led 
to  confuse  the  rights  which  the  subject  ought  to 
have  with  those  rights  which  he  actually  pos- 
sesses ;  and  we  are  not  much  surprised  to  find 
such  a  person  asserting  at  one  moment  that  the 
subject  has  certain  inviolable  natural  rights, 
and  at  another  that  the  authority  of  the  sover- 
eign is  unlimited.  It  is  to  be  remembered  also 
that  the  Germans,  like  all  Teutons,  had  a  highly 
developed  sense  of  individualit}',  although  dur- 
ing the  period  of  which  we  are  speaking  they 
lived  under  autocratic  governments;  and  we  see 
in  their  writings  an  almost  pathetic  longing  for 
personal  independence  coupled  with  an  uncon- 
querable respect  for  the  established  authorities. 
Kant  was,  pei'haps,  the  most  German  of  ths 
Germans,  and  in  his  writings  the  qualities  to 
which  I  have  referred  may  be  found  very  fully 
developed.  He  published  his  first  political  trea- 
tise in  1793,  at  the  age  of  sixty-nine,  as  one  of 
a  series  of  essays  upon  the  proverb,  "  That  may 
be  all  very  well  in  theory,  but  it  will  not  work 
in  practice."  The  humor  of  discussing  the  so- 
cial compact  under  such  a  title  was  unfortu- 
nately lost  upon  the  author,  who  attempted  to 
show  that,  although  such  a  compact  could  not 
be  looked  upon  as  an  actual  fact,  yet  as  a  theory 


THE  THEORY  OF   THE  SOCIAL   COMPACT.    175 

it  was  the  basis  of  certain  political  principles 
which  ought  to  be  acted  upon  in  practice.  The 
only  other  work  of  much  importance  in  which 
he  discusses  the  subject  is  his  "  Metaphysical 
Principles  of  the  Theory  of  Law,"  published  in 
1796,  and  deeply  influenced  by  the  writings  of 
Rousseau. 

Kant  begins  his  first  treatise  with  the  remark 
that  the  contract  by  means  of  which  a  common- 
wealth is  formed  differs  from  all  other  con- 
tracts of  association  in  this  :  that  while  the  lat- 
ter are  made  for  various  purposes,  the  former 
is  the  only  one  which  is  its  own  object.  The 
object  of  the  social  compact  is  not  the  promo- 
tion of  the  happiness  of  the  contracting  par- 
ties, but  merely  the  institution  of  a  common- 
wealth ;  that  is,  the  creation  of  a  condition  of 
things  in  which  the  members  are  possessed  of 
legal  rights,  and  he  defines  right,  in  his  own 
lucid  way,  as  the  limitation  of  the  freedom  of 
each  man  on  the  condition  that  it  is  consistent 
with  the  freedom  of  every  other  man.  as  far  as 
this  is  possible  according  to  universal  laws. 
The  foundations  upo^i  which  alone  a  common- 
wealth can  be  erected  in  accordance  with  the 
pure  rational  principles  of  human  rights  are  the 
liberty,  equality,  and  self-sufficiency  of  its  mem- 
bers. The  last  of  these  I  shall  explain  later, 
but   the   others    require    immediate    attention. 


176  ESSAYS  ON  GOVERNMENT. 

The  purpose  for  which  a  commonwealth  is  in- 
stituted being  merely  the  creation  of  the  rights 
of  its  members,  and  not  the  direct  promotion 
of  their  happiness,  no  man  can  be  compelled  to 
be  happy  in  any  particular  manner,  but  each 
man  has  a  right  to  pursue  his  own  happiness  in 
the  way  he  thinks  best,  so  long  as  he  does  not 
interfere  with  the  right  of  every  other  man  to 
do  likewise  in  accordance  with  the  universal 
law.  This  is  that  liberty  to  which  every  mem- 
ber of  the  community  is  entitled  as  a  man,  and 
any  attempt  on  the  part  of  the  government  to 
treat  its  subjects  as  children,  and  regulate  their 
happiness,  is  the  worst  possible  despotism. 

The  equality  of  the  members  of  the  com- 
munity follows  naturally  as  a  corollary  from 
their  liberty,  and  may  be  expressed  by  saying 
that  each  man  has  the  same  rights  against 
every  other  man,  the  sovereign  only  excepted, 
that  every  other  man  has  against  him.  Such 
an  equality  is  not  inconsistent  with  the  greatest 
difference  in  property,  and  even  in  rank ;  for  it 
is  not  necessary  that  the  actual  rights  of  every 
man  should  be  the  same,  but  only  that  there 
should  be  no  legal  barrier  to  prevent  any  man 
from  acquiring  the  property  and  rights,  or  ris- 
ing to  the  position,  enjoyed  by  another  member 
of  the  community.  Kant  declares,  accordingly, 
that  rank  and  privilege  cannot  be  hereditary, 


THE   THEORY  OF  THE  SOCIAL   COMPACT.     177 

but  must  be  open  to  every  person  who,  by  his 
talent,  diligence,  and  good  fortune,  is  capable 
of  attaining  to  them. 

Now  one  would  naturally  suppose,  after  such 
a  discussion,  that  Kant  regarded  the  right  to 
liberty  and  equality  as  in  reality  a  right,  and 
that  in  his  opinion  an  act  of  the  sovereign 
which  violated  this  right  would  be  unlawful, 
and  might  be  resisted  by  the  subject.  But  so 
far  we  have  been  considering  only  the  immov- 
able, without  taking  account  of  the  irresistible, 
and  in  this  case  it  is  the  latter  which  carries 
the  day.  For  although  Kant  appears  to  base 
his  system  upon  an  original  contract,  and,  start- 
ing from  the  premise  that  it  is  only  to  himself 
that  a  man  can  do  no  wrong,  declares  that  no 
one  can  have  power  to  legislate  for  a  commu- 
nity except  by  virtue  of  a  fundamental  law  rest- 
ing on  the  universal  will  of  the  people,  so  that 
even  the  right  of  the  majority  to  bind  the  mi- 
nority can  derive  its  force  only  from  an  orig- 
inal contract  agreed  to  by  every  one,  yet  he 
regards  the  social  compact  not  as  the  actual 
foundation  of  law,  but  merely  as  a  theory, 
giving  rise  to  certain  principles  to  which  laws 
ought  to  conform.  He  goes  so  far  as  to  con- 
demn the  notion  that  any  social  contract  was 
actually  made,  on  the  ground  that  such  a  doc- 
trine   encourages    the    idea    of    popular   sover- 


178  ESSAYS   ON  GOVERNMENT. 

eignty,  and  gives  rise  to  insurrection  and  rebel- 
lion ;  and  while  in  one  place  he  argues  strongly 
in  favor  of  the  right  of  free  speech,  he  tells  us 
in  another  that,  for  practical  purposes,  the  ori- 
gin of  the  supreme  power  is  unsearchable  by 
the  people  who  are  subjected  to  it,  and  that  to 
throw  doubt  upon  it  is  a  crime. 

Kant  does  not,  however,  look  on  the  social 
compact  as  a  mere  idle  theory,  and  the  object 
of  one  of  his  treatises  appears  to  be  to  show  its 
practical  importance ;  not,  indeed,  in  establish- 
ing rights,  but  in  furnishing  a  rule  by  which  to 
test  the  rectitude  of  laws.  He  states  the  test 
in  this  way  :  If  a  law  is  so  made  that  it  is  im- 
possible that  a  whole  people  should  give  its 
assent  to  it  (a  law  conferring  hereditary  privi- 
leges, for  example),  then  the  law  is  not  just;1 
but  if  such  an  assent  is  merely  possible,  then 
the  law  must  be  considered  just.  But  this  test 
is  useful  only  as  a  guide  to  the  lawgiver,  and  is 
not  to  be  applied  by  the  subjects,  whose  duty 
it  is  in  all  cases  to  obey.  If  the  sovereign  de- 
parts from  the  test,  and  even  if  he  violates  the 
original  contract,  the  subjects  are  not  justified 

1  It  is  impossible  to  render  correctly  the  German  word  gerecht, 
which  does  not  distinctly  imply  whether  the  act  in  question  is 
right  from  a  legal  or  from  a  moral  point  of  view.  No  doubt  the 
absence  of  words  clearly  distinguishing  between  moral  and  legal 
right  is  partly  caused  by,  and  has  helped  to  aggravate,  the  confu- 
sion of  the  Germans  upon  this  subject. 


THE  THEORY  OF  THE  SOCIAL    COMPACT.    179 

in  resisting  him  ;  because,  the  sovereign  being 
by  definition  supreme  in  the  state,  there  can 
be  no  higher  power  to  decide  controversies  be- 
tween him  and  his  subjects,  or  to  enforce  the 
rights  of  the  latter.  It  is  only  by  submission 
to  his  universal  lawgiving  will  that  a  condition 
in  which  legal  rights  exist  is  possible  at  all,  and 
to  resist  the  sovereign  is  to  bring  about  a  state 
of  things  where  all  right  ceases,  or  at  least 
where  it  can  no  longer  have  any  effect,  and  this 
is  in  the  highest  degree  unlawful. 

If  such  assertions  as  these,  Kant  says,  draw 
upon  him  the  reproach  of  flattering  monarchs 
to  excess,  he  hopes  that  he  may  be  spared  the 
accusation  of  too  much  favoring  the  people 
when  he  maintains,  in  opposition  to  Hobbes, 
that  they  retain  certain  indestructible  rights 
against  the  sovereign  ;  and  he  stigmatizes  as 
horrible  Hobbes's  doctrine  that  the  sovereign 
can  do  no  injustice  to  the  subject.  But  a  closer 
investigation  shows  that  his  own  views  do  not 
differ  very  much  from  those  which  he  abhors, 
except  that  he  objects  to  calling  a  spade  a  spade, 
and  Hobbes  does  not;  for  these  indestructible 
rights  —  which,  by  the  way,  only  entitle  the 
subject  to  express  his  opinion  in  public  affairs 
and  to  make  a  statement  of  his  grievances  — 
are  not  enforceable  (zivangsrecht},  and  depend 
for  their  exercise  entirely  on  the  gooil  will  of 
the  sovereign. 


180  ESSAYS  ON  GOVERNMENT. 

Kant  discusses  at  some  length  the  rightful 
form  of  government,  meaning  by  that,  not  the 
form  which  alone  can. rightfully  command  the 
obedience  of  its  subjects,  but  only  the  form  of 
a  government  constructed  according  to  the  pure 
principles  of  right,  and  serving  as  a  model 
which  all  others  ought  gradually  to  be  made 
to  resemble.  He  accepts  the  principle  of  the 
separation  of  the  legislative,  executive,  and 
judicial  powers,  and  claims  that  the  first  be- 
longs exclusively  to  the  people  or  their  repre- 
sentatives. It  is  in  this  connection  that  the 
curious  doctrine  of  the  self  -  sufficiency  of  the 
citizen,  to  which  I  have  already  referred,  be- 
comes of  importance,  for,  in  Kant's  opinion,  all 
the  citizens  are  not  capable  of  taking  part  in 
legislation,  but  only  those  who  are  self-support- 
ing and  therefore  independent ;  and  in  this 
category  he  does  not  mean  to  include  all  per- 
sons who  are  supported  by  their  own  exertions, 
but  distinguishes  between  those  who  give  their 
labor  for  hire  and  those  who  bestow  their 
labor  upon  articles  which  they  afterwards  sell, 
—  the  former  having  no  right  to  vote,  while 
the  latter  are  in  the  fullest  sense  citizens.  The 
separation  of  powers  does  not  afford,  it  appears, 
a  sufficient  security  to  the  citizen,  and  another 
strange  conclusion  is  drawn  from  the  funda- 
mental axiom  that  it  is  only  to  himself  that  a 


THE  THEORY   OF  THE  SOCIAL   COMPACT.    181 

man  can  do  no  wrong.  Any  person  who  is  set 
to  judge  may  do  an  injustice,  and  the  people 
ought,  therefore,  to  judge  themselves  by  a  jury 
taken  from  among  them,  which  decides  all  mat- 
ters of  fact  and  leaves  to  the  court  the  ques- 
tions of  law.  This  is  a  strange  application  of 
Rousseau's  fiction  that  every  one  in  the  state 
is  governed  only  by  laws  of  his  own  making. 

When  Kant  proceeds  to  discuss  the  criminal 
law,  the  characteristic  yearning  of  the  German 
mind  seizes  him  with  great  violence,  and,  reject- 
ing indignantly  all  motives  of  expediency,  he 
seeks  an  internal  juristic  necessity  drawn  from 
the  nature  of  the  crime  itself.  He  finds  it  in 
the  principle  of  equality,  that  one  ought  to  in- 
cline no  more  to  one  side  than  to  another,  and 
says  that  whatever  wrong  you  have  done  to  an- 
other you  must  do  to  yourself.  It  would  take 
too  long  to  explain  how,  from  this  doctrine  of 
an  eye  for  an  eye  and  a  tooth  for  a  tooth,  he 
deduces  the  fact  that  imprisonment  is  the  ap- 
propriate punishment  for  theft,  but  it  is  obvious 
that  death  is  the  proper  retribution  for  murder. 
So  severe  is  he  in  the  application  of  this  in- 
trinsic justice  that  he  considers  it  a  crime  to 
allow  a  murderer  to  live,  and  declares  that  if 
a  community  determines,  with  the  consent  of 
every  member,  to  break  up  and  disperse,  the 
last   murderer  in  prisoa   must  be  executed  be- 


182  ESSAYS   ON  GOVERNMENT. 

fore  they  do  so,  in  order  that  the  guilt  of  vio- 
lating justice  may  not  fall  upon  the  people. 
A  friend  of  mine  has  suggested  that  if  this 
principle  were  so  extended  as  to  keep  the  com- 
munity together  until  all  the  lesser  criminals 
in  jail  had  served  out  their  sentences,  it  would 
probably  have  the  desirable  effect  of  prevent- 
ing the  community  from  breaking  up  at  all. 

The  theory  of  the  social  compact  appears  to 
have  had  a  peculiar  fascination  for  the  German 
mind,  for  it  was  taken  up  by  Kant's  successors, 
and  it  is  only  quite  recently  that  it  has  been 
finally  abandoned  by  them. 

We  have  traced  the  history  of  this  extraor- 
dinary theory  from  the  time  of  its  first  appear- 
ance at  the  end  of  the  sixteenth  century,  and 
we  have  seen  it  used  to  support  the  most  diver- 
gent doctrines  and  the  most  conflicting  opinions ; 
for,  like  certain  ingenious  Yankee  inventions, 
it  was  capable  of  being  applied  to  almost  any 
service,  although  really  adapted  to  none.  No 
better  example  can  be  found  of  the  fact  so 
strongly  urged  by  Lecky  that  men  are  chiefly 
persuaded,  not  by  the  logical  force  of  argu- 
ments, but  by  the  disposition  with  which  they 
view  them.  We  have  seen  the  theory  started 
by  a  zealous  churchman  to  uphold  his  church. 
We  have  seen  it  wielded  by  Hobbes  in  favor 
of  absolute  monarchy  in   England.     We  have 


THE   THEORY  OF   THE  SOCIAL   COMPACT.    183 

then  seen  it  taken  up  by  Locke  as  a  shield  to 
individual  right,  and  in  defense  of  a  limitation 
of  the  power  of  government ;  and  later  still  by 
Rousseau,  as  an  argument  for  an  unbridled  de- 
mocracy. We  have  seen  its  working  here  on 
the  Constitution  of  Massachusetts;  and  after 
lighting  the  world  for  two  centuries,  we  have 
seen  it  give  a  last  despairing  flicker  in  the 
courts  of  the  United  States,  and  fade  away  in 
the  dim  light  of  German  metaphysics.  It  now 
remains  for  us  to  mark  the  causes  of  its  rise 
and  fall. 

To  the  Greeks  and  to  those  of  the  Romans 
who  looked  at  jurisprudence  from  a  philosophic 
point  of  view,  law  was  merely  a  department  of 
morals ;  and  this  explains  the  absence  among 
the  ancients  of  any  systematic  attempt  to  dis- 
cover a  special  basis  for  the  obligation  of  legal 
duties.1  When  the  Teutonic  race,  on  the  other 
hand,  first  appeared  on  the  borders  of  the  Ro- 
man Empire,  it  was  still  in  that  early  stage  of 
civilization  in  which  the  rightfulness  of  exist- 
ing institutions  is  assumed  without  question;  in 
which  it  is  enough  that  no  one  remembers  a 
time  when  things  were  otherwise,  and  custom 
undisputed  has  the  force  of  law.  Under  these 
circumstances  legislation  is  unknown,  and  the 

1  In  Plato's  Republic,  Book  II.,  there  is  a  reference  to  a  crude 
notion  of  an  original  compact. 


184  ESSAYS    ON  GOVERNMENT. 

slow  change  which  takes  place  in  the  laws  is 
brought  about  through  the  administration  of 
justice,  and  the  exercise  of  those  powers  which 
we  should  class  to-day  among  the  executive 
functions  of  government.  As  political  needs 
developed  during  the  course  of  the  Middle 
Ages,  and  were  better  understood,  the  idea  of 
legislation  as  something  distinct  from  adminis- 
tration, and  as  an  intentional  change  in  the  ex- 
isting law,  begins  to  appear,  but  the  form  which 
it  assumes  is  characteristic  of  the  political  views 
of  the  da}r.  The  lawyers,  deriving  their  ideas 
from  the  writings  of  the  Roman  jurists,  asserted 
at  quite  an  early  period  that  the  king  was  the 
source  of  all  legislative  power;  but  underlying 
this  doctrine,  and  constantly  cropping  up,  we 
find  the  principle  that  any  change  in  the  law 
requires  the  consent  of  those  whom  it  con- 
cerns. Such  a  claim  was  almost  universal  in 
the  matter  of  taxation,  and  even  on  questions 
of  general  legislation  it  was  constantly  recur- 
ring when  a  change  was  clearly  seen  to  affect 
anything  more  than  the  mere  administration  of 
the  law.  Now  it  must  be  remembered  that  in 
feudal  times  little  or  no  distinction  was  made 
between  public  and  private  rights.  All  rights, 
beginning  with  that  of  the  king  to  demand 
from  his  vassal  an  aid  to  ransom  him  from  cap- 
tivity, and  including   that  of  the  smallest  land- 


THE   THEORY  OF  THE  SOCIAL  COMPACT.    185 

owner  to  exact  a  heriot  on  the  death  of  his 
tenant,  were  looked  upon  as  private  property. 
Under  these  circumstances  it  is  not  strange 
that  an  innovation  in  the  law  was  thought  to 
require  the  consent  of  those  whose  property- 
was  to  be  affected  by  it,  whether  it  were  the 
grant  of  a  "■free  aid,"  or  a  change  in  the  estab- 
lished custom  of  the  realm,  and  this  idea  found 
its  most  complete  expression  in  the  famous  say- 
ing of  Edward  I. :  "  That  which  toucheth  all 
shall  be  allowed  of  all."  The  conceptions  of 
the  Middle  Ages  upon  this  subject,  therefore, 
were  not  of  a  character  to  excite  political  spec- 
ulation, because  the  rightfulness  of  all  property 
was  assumed  without  question,  and  of  course 
there  could  be  no  doubt  of  the  right  of  every 
man  to  dispose  of  his  own.  But  when  the 
Renaissance  gave  a  new  impulse  to  thought, 
and  men  began  to  distinguish  more  accurately 
between  public  authority  and  private  right,  it 
was  unavoidable  that  they  should  investigate 
the  rightfulness  of  that  authority,  and  inquire 
into  the  origin  of  property.  The  question, 
then,  presented  itself:  Whence  has  a  govern- 
ment a  right  to  compel  a  man  to  act  against  his 
will,  and  what  gives  the  binding  force  to  law? 
There  was  one  obvious  way  to  answer  the  ques- 
tion, and  that  was  to  ascribe  a  divine  origin  to 
government ;  but  this  view  of  the  matter,  for 


186  ESSAYS   ON  GOVERNMENT. 

reasons  which  I  have  already  explained,  be- 
came monopolized  by  one  school  of  political 
thinkers,  and  consequently  discredited  among 
those  who  did  not  agree  with  their  tenets. 
One  other  solution  of  the  difficulty  suggested 
itself,  and  that  was  the  consent  of  the  person 
interested  ;  for  clearly  a  man  cannot  be  wronged 
by  an  act  to  which  he  has  freely  consented,  and 
what  easier  than  to  suppose  a  universal  compact, 
made  at  some  remote  period,  by  which  every 
one  consented  to  the  institution  of  a  govern- 
ment, and  agreed  to  be  bound  by  the  laws 
enacted  by  it?  Such  a  compact  appeared  to 
many  men  the  only  wray  of  accounting  for  the 
rightfulness  of  government,  and  its  existence 
was  assumed  without  hesitation ;  for,  anarchists 
being  few  in  those  times,  every  one  was  con- 
strained to  allow  the  lawfulness  of  some  gov- 
ernment or  other,  and  when  belief  is  indispen- 
sable it  is  easy  to  believe. 

In  this  way  the  theory  of  the  social  compact 
met  with  a  very  general  acceptance,  and  yet 
it  contained  within  itself  the  seeds  of  its  own 
destruction,  because,  if  the  theory  were  logically 
carried  out,  each  man,  when  he  came  of  age, 
ought  to  have  a  right,  as  Locke  maintained,  to 
sever  his  connection  with  the  body  politic  and 
declare  his  freedom  from  its  laws  :  but  such  a 
doctrine,    greatly    impairing,    as   it   must,  the 


THE    THEORY  OF  THE  SOCIAL   COMPACT.    187 

effect  of  the  theory,  and  giving  a  constant  en- 
couragement to  lawlessness,  could  not  be  ad- 
mitted for  a  moment.  The  theory,  moreover, 
rested  on  the  assumption  that  a  contract  is  in- 
trinsically binding  in  a  state  of  nature  when 
other  rights  do  not  exist ;  but  such  an  assump- 
tion, although  plausible,  is  clearly  seen  to  be 
false  by  any  one  who  will  take  pains  to  think 
about  it.  Spinoza  and  Leibnitz  pointed  this 
out  in  the,  earlier  days  of  the  discussion,  but 
the  tide  was  too  strong  to  be  stemmed  at  that 
time.  As  a  matter  of  history,  indeed,  it  is  well 
known  to  students  of  the  early  forms  of  law 
that  the  right  to  compel  the  performance  of  a 
contract  is  not  developed  until  long  after  the 
right  to  property  is  well  established.  But  un- 
doubtedly the  chief  causes  of  the  decline  of  the 
theory  were  the  change  in  the  general  tone  of 
thought  from  speculative  to  positive,  and  the 
complete  absurdity  of  such  a  compact  from  an 
historical  point  of  view,  —  an  absurdity  which 
became  more  evident  as  a  knowledge  of  semi- 
barbarous  races  became  more  extensive.  It 
may  well  be  doubted  whether  any  one  ever 
believed  that  an  actual  compact  of  this  kind 
was  made  by  people  in  a  state  of  nature. 
Imagine  a  crowd  of  half-naked  savages  grouped 
around  an  ancient  oak,  while  an  old  chief  under 
its    boughs   explains   to    them   that  they  have 


188  ESSAYS   ON  GOVERNMENT. 

reached  the  point  when  it  is  advisable  to  form 
a  civil  body  politic,  and  that  it  is  proposed  to 
agree,  among  other  things,  that  when  they  be- 
come sufficiently  civilized  to  understand  the 
meaning  of  king,  lords,  and  commons,  and  to 
appreciate  the  benefits  of  taxation,  then  the 
king  shall  not  have  power  to  levy  any  tax  with- 
out the  consent  of  the  faithful  commons.  Im- 
agine the  savages  clashing  their  spears  and 
shields  in  token  of  universal  approval,  and 
breaking  up  with  a  further  understanding,  that 
the  sacredness  of  the  social  compact  shall  in- 
stantly be  made  an  article  of  the  state  religion. 


V. 


THE  LIMITS   OF   SOVEKEIGNTY. 

No  man  in  this  country  is  so  high  that  he  is  above  the  law.  No 
officer  of  the  law  may  set  that  law  at  defiance  with  impunity.  All 
the  officers  of  the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law,  and  are  bound  to  obey  it. 

It  is  the  only  supreme  power  in  our  system  of  government.  —  Mr. 
Justice  Miller,  in  United  States  v.  Lee,  106  U.  S.  196. 

Among  the  theories  of  jurists  there  is,  per- 
haps, none  which  has  been  a  battle-ground  for 
so  long  a  time  as  that  which  relates  to  the 
limits  of  sovereign  power.  For  two  centuries 
and  a  half  the  writers  who  maintained  that 
sovereignty  is  in  its  nature  unlimited,  and  those 
who  contended  that  man  is  endowed  with  cer- 
tain natural  rights  which  the  state  cannot  le- 
gaily  invade,  waged  against  each  other  a  con- 
tinual war ;  the  former,  in  England,  being 
found  among  the  partisans  of  monarchy,  the 
latter  in  the  ranks  of  those  who  favored  the 
popular  cause.  But  now,  just  at  the  moment 
when  democracy  is  carrying  everything  before 
it,  and  the  advocates  of  the  natural  rights  of 
man  appear  to  have  triumphed,  there  has  come 


190  ESSAYS   ON  GOVERNMENT. 

a  sudden  change  of  base,  and  the  victors,  adopt- 
ing the  opinions  of  the  vanquished,  are  almost 
universally  convinced  that  the  authority  of  the 
sovereign,  from  its  very  nature,  can  be  subject 
to  no  limitation  or  restraint. 

This  change  is  far  from  accidental,  and  may 
be  traced  to  two  entirely  distinct  causes,  of 
which  one  has  acted  with  great  force  upon  the 
mass  of  the  community,  while  the  other  has 
produced  an  effect  even  more  striking  upon  the 
minds  of  scholars.  So  long  as  the  reins  of  gov- 
ernment were  in  the  hands  of  a  king  or  an  aris- 
tocrac\T,  it  was  natural  that  the  advocates  of 
popular  rights  should  seek  to  restrain  his  power ; 
but  after  the  people  had  obtained  control  of  the 
state,  it  was  not  to  be  expected  that  they  would 
show  the  same  respect  for  principles  which  fet- 
tered the  exercise  of  their  own  authority.  The 
ascendency  of  the  popular  party  had,  therefore, 
an  inevitable  tendency  to  upset  those  doctrines 
which  were  designed  to  limit  the  exercise  of 
power  by  others.  Now  it  was  during  the 
period  when  democracy  was  beginning  to  assert 
its  power,  that  Bentham's  treatise  on  legisla- 
tion,1 and  Austin's  work  on  jurisprudence,  at- 

l  Bentham,  as  will  be  seen  in  ihe  following  pages,  far  from 
teaching  the  doctrine  that  the  power  of  the  sovereign  is  unlimited, 
distinctly  repudiated  it,  and  yet  there  can  be  no  doubt  that  his 
principles,  by  undermining  the  old  notion  of  natural  rights,  mate- 
rially helped  to  establish  that  doctrine. 


THE  LIMITS  OF  SOVEREIGNTY.  191 

tracted  the  serious  attention  of  scholars  :  the  first 
of  these  writers  proclaiming  the  greatest  happi- 
ness of  the  greatest  number  as  the  sole  and  final 
test  of  legislation  ;  while  the  second  developed, 
in  a  new  form,  the  doctrine  that  sovereignty  is 
essentially  incapable  of  limitation,  and  by  the 
clearness  and  force  of  his  logic,  obtained  a  mas- 
tery over  the  legal  thought  of  English-speaking 
people,  which  has  never  been  equaled  in  the 
history  of  the  race.  The  despotic  nature  of 
absolute  democracy  has  helped  to  make  Austin's 
views  upon  sovereignty  prevail ;  but  this  alone 
would  not  account  for  the  force  with  which  his 
theories  have  stamped  themselves  upon  all  sub- 
sequent legal  speculation  ;  and  the  many  criti- 
cisms upon  this  work,  however  correct  some  of 
them  may  have  been,  have  served  to  bring  into 
brighter  light  the  extraordinary  power  of  his 
intellect. 

At  first  sight,  Austin's  doctrine  appears  to 
involve  merely  an  abstract  question,  or  intel- 
lectual problem,  which  has  no  real  bearing  on 
actual  government;  but  this  is  far  from  true, 
for  although  as  understood  by  its  author  it  is 
harmless,  even  if  erroneous,  yet  when  applied 
to  politics,  it  is  liable  to  be  very  much  abused, 
and  to  become  the  source  of  evils  which  were 
by  no  means  contemplated  by  him.  In  the 
first  place,  the  doctrine  that  sovereign  power  is 


192  ESSAYS   ON   GOVERNMENT. 

unlimited  leads  almost  unavoidably  to  the  opin- 
ion that  it  is  proper  to  use  that  power  without 
restraint,  because  the  great  mass  of  the  peo- 
ple cannot  distinguish  between  the  legal  and 
moral  aspects  of  politics,  and  are  very  apt  to 
conclude  that  if  the  state  has  a  legal  right  to  do 
a  certain  act,  it  is  under  no  moral  obligation  to 
refrain  from  doing  it.  There  is  a  danger,  in 
the  second  place,  that  the  people  will  confound 
sovereignty  with  legislative  power,  and  attrib- 
ute the  former  to  any  body  which  possesses  the 
latter.  If  they  are  taught  that  the  power  of 
the  sovereign  is  absolute,  they  ai*e  likely  to  be- 
lieve that  the  legislature  ought  to,  and  in  fact 
does,  have  authority  to  pass  laws  without  re- 
straint, —  a  notion  which  would  undermine  the 
very  foundations  of  our  whole  political  system. 
It  is  for  these  reasons  that  the  doctrine  ad- 
vanced by  Austin  is  of  real  practical  impor- 
tance, and  not  a  mere  matter  for  intellectual 
speculation  ;  but  in  considering  the  subject  I 
shall  assume  the  liberty,  so  rarely  allowed  at 
the  present  day,  of  treating  the  theory  from  a 
purely  abstract  stand-point,  without  inquiring 
in  what  body  or  bodies  sovereignty  is  actu- 
ally lodged  in  the  United  States,  or  whether 
those  bodies  (be  they  States  severally,  States 
in  union,  or  people  of  the  nation)  are  possessed 
of  absolute  power  or  not. 


THE  LIMITS   OF  SOVEREIGNTY.  193 

The  writers  of  that  great  school  which  main- 
tained the  possibility  of  limitations  upon  the 
authority  of  government,  based  their  theories 
upon  what  they  styled  the  natural  rights  of 
man.  Man,  they  said,  is  endowed  by  nature 
with  certain  legal  rights  which  he  cannot,  or  at 
least  which  lie  never  did,  surrender,  and  these 
rights,  derived  as  they  are  from  a  higher  source 
than  civil  government,  cannot  be  abridged  or 
destroyed  by  legislation.  Such  a  tenet  of  man's 
natural  rights  was  long  accepted  as  an  axiom 
by  the  great  bulk  of  Englishmen,  and  it  is  due 
to  Austin  more  than  to  any  one  else,  with  the 
possible  exception  of  Bentham,  that  within  the 
last  half  century  the  idea  has  fallen  into  dis- 
credit, and  been  abandoned  by  almost  every 
scholar  in  England  and  America.  Austin's 
teachings  on  this  subject  were  not  altogether 
original  with  him,  but  were  derived  from 
Hobbes,  whose  writings,  except  when  occasion- 
ally mentioned  with  a  shudder,  slept  unnoticed 
for  two  hundred  years  until  brought  into  prom- 
inence again  by  his  great  disciple.  Hobbes 
seems  to  have  been  the  first  man  who  under- 
stood the  difference  between  legal  and  moral 
obligations ;  who  saw  that  legal  rights  depend 
for  their  existence  upon  positive  law,  and  that 
positive  law  is  an  artificial  creation  made  by 
men.     In  this  view  he  was  followed  by  Austin, 


194  ESSAYS  ON   GOVERNMENT. 

who  transformed  the  crude  ideas  of  his  master 
into  a  complete  philosophical  system. 

Austin's  definition  of  law  may  be  briefly 
stated  as  follows  :  A  law  is  a  command,  coupled 
with  a  sanction,  given  by  a  political  superior 
or  sovereign  to  a  political  inferior  or  subject. 
So  far  as  statute  law  is  concerned,  this  defini- 
tion is  undoubtedly  correct,  for  a  statute  is 
clearly  a  command  issued  by  the  legislature ; 
but  the  customary  law  presents  at  once  a  diffi- 
culty, and  of  this  Austin  says  (Lecture  I.  p.  23, 
2d  ed.)  :  — 

"  Now  when  judges  transmute  a  custom  into 
a  legal  rule  (or  make  a  legal  rule  not  suggested 
by  a  custom),  the  legal  rule  which  they  estab- 
lish is  established  by  the  sovereign  legislature. 
A  subordinate  or  subject  judge  is  merely  a 
minister.  The  portion  of  the  sovereign  power 
which  lies  at  his  disposition  is  merely  delegated. 
The  rules  which  he  makes  derive  their  legal 
force  from  authority  given  by  the  State  :  an 
authority  which  the  State  may  confer  expressly, 
but  which  it  commonly  imparts  by  way  of  ac- 
quiescence. For,  since  the  State  may  reverse 
the  rules  which  he  makes,  and  yet  permits  him 
to  enforce  them  by  the  power  of  the  political 
community,  its  sovereign  will  '  that  his  rules 
shall  obtain  as  law'  is  clearly  evinced  by  its 
conduct,  though  not  by  its  express  declaration." 


THE  LIMITS  OF  SOVEREIGNTY.  195 

"  Like  other  significations  of  desire,  a  com- 
mand is  express  or  tacit.  If  the  desire  be  sig- 
nified by  icords  (written  or  spoken),  the  com- 
mand is  express.  If  the  desire  be  signified  by- 
conduct  (or  by  any  signs  of  desire  which  are 
not  words),  the  command  is  tacit." 

"  Now  when  customs  are  turned  into  legal 
rules  by  decisions  of  subject  judges,  the  legal 
rules  which  emerge  from  the  customs  are  tack 
commands  of  the  sovereign  legislature.  The 
State,  which  is  able  to  abolish,  permits  its  min- 
isters to  enforce  them  :  and  it,  therefore,  signi- 
fies its  pleasure,  by  that  its  voluntary  acquies- 
cence, '  that  they  shall  serve  as  a  law  to  the 
governed.'  " 

The  reasoning  here  presented  rests,  it  will 
be  noticed,  entirely  on  the  statement  that  the 
sovereign  legislature  has  power  to  abolish  the 
customary  law ;  but  this  assertion,  while  very 
nearly  accurate  in  the  present  state  of  political 
development,  is  by  no  means  universally  true. 
In  most  of  the  civilized  countries  of  the  world, 
perhaps  in  all  of  them,  there  exists  to-day  a 
legislative  body  which  possesses  such  a  power  ; 
but  this  has  not  always  been  the  case,  for  it 
is  well  known  to  students  of  early  forms  of 
law  that  the  legislative  function  develops  much 
later  than  the  administrative  or  the  judicial, 
and    that  law  attains  a  considerable  degree  of 


196  ESSAYS   ON   GOVERNMENT. 

perfection  before  a  distinct  idea  of  legislation 
makes  its  appearance.  The  practice  of  creat- 
ing law  shows  itself  at  first  modestly  and  tim- 
idly, and  attempting  to  conceal  its  real  nature, 
assumes  the  form  of  declaring  existing  rules  or 
regulating  the  methods  of  procedure,  and  not 
that  of  deliberate  innovation.  For  a  long  time 
custom  is  far  more  potent  as  a  source  of  law 
than  legislation,  and  it  is  only  by  very  slow 
degrees  that  the  latter  acquires  the  predomi- 
nance. A  certain  class  of  laws,  indeed,  those 
which  relate  to  the  fundamental  institutions  of 
government,  were  not  drawn  completely  within 
the  sphere  of  legislation  until  very  recent 
times.  Louis  XIV.  was  the  sole  possessor 
of  political  power  and  absolute  sovereign  in 
France ;  but  an  attempt  on  his  part  to  make 
Madame  de  Main  tenon  his  successor  on  the 
throne  would  undoubtedly  not  have  been  con- 
sidered by  the  bulk  of  his  subjects  as  impair- 
ing his  heir's  right  to  the  crown  ;  and  although 
in  some  countries  the  royal  succession  was  de- 
liberately altered,  yet  the  power  of  changing 
the  constitution  of  government  cannot  be  said 
to  have  developed  full}7  in  modern  Europe  be- 
fore the  outbreak  of  the  French  Revolution.  In 
the  early  stages  of  civilization  the  power  of  any 
man  or  body  of  men  to  interfere  with  customary 
law  is    extremely  limited,  and  the  persons  by 


THE  LIMITS  OF  SOVEREIGNTY.  197 

whom  justice  is  administered  are  not  in  fact,  or 
in  public  estimation,  the  ministers  of  any  legis- 
lative body,  nor  are  they  under  its  control.  It 
is  only  by  the  purest  of  fictions  that  custom- 
ary law  under  these  circumstances  can  be  said 
to  exist  by  virtue  of  the  will  of  such  a  body,  or 
to  be  established  by  its  commands. 

It  is  clear,  therefore,  that  Austin's  definition 
of  law,  although  nearly  accurate  at  the  present 
day,  is  incorrect  when  applied  to  primitive  so- 
cieties, or  even  to  those  which  have  reached  a 
considerable  degree  of  civilization.  The  defi- 
nition, in  short,  is  not  true  of  law  in  general, 
and  this  is  important  when  we  come  to  con- 
sider the  nature  of  sovereignty,  because  Austin's 
proof  that  sovereign  power  can  have  no  limits 
is  based  entirely,  as  we  shall  see,  upon  the 
proposition  that  all  law  is  the  command  of  a 
political  superior.  If  this  proposition  is  not 
universally  true,  his  proof,  even  if  otherwise 
unimpeachable,  will  apply  only  to  those  states 
in  which  it  can  be  shown  as  a  fact  that  all  law 
derives  its  force  from  such  a  command  ;  and 
in  these  states  it  will  not  demonstrate  that  the 
power  of  the  sovereign  is  incapable  of  limita- 
tion, but  merely  that  it  is  not  actually  limited 
at  the  time  when  the  fact  in  question  is  found 
to  exist. 

We   now  come  to  the  great   argument  de- 


198  ESSAYS   ON   GOVERNMENT. 

signed  to  prove  that  sovereign  power  cannot 
be  limited.  It  is  as  follows  (Lect.  VI.  p.  225, 
2d  ed.)  :  — 

"Every  positive  law,  or  every  law  simply  and 
strictly  so  called,  is  set,  directly  or  circuitonsly, 
by  a  sovereign  person  or  body,  to  a  member 
or  members  of  the  independent  political  society 
wherein  that  person  or  body  is  sovereign  or 
supreme.  Or  (changing  the  expression)  it  is 
set,  directly  or  circuitonsly,  by  a  monarch  or 
sovereign  number,  to  a  person  or  persons  in  a 
state  of  subjection  to  its  author." 

"  Now,  it  follows  from  the  essential  differ- 
ence of  a  positive  law,  and  from  the  nature  of 
sovereignty  and  independent  political  society, 
that  the  power  of  a  monarch  property  so  called, 
or  the  power  of  a  sovereign  number  in  its  colle- 
giate and  sovereign  capacity,  is  incapable  of 
legal  limitation.  A  monarch  or  sovereign  num- 
ber, bound  by  a  legal  duty,  were  subject  to  a 
higher  or  superior  sovereign  :  that  is  to  say, 
a  monarch  or  sovereign  number  bound  by  a 
legal  duty,  were  sovereign  and  not  sovereign. 
Supreme  power  limited  by  positive  law  is  a  flat 
contradiction  in  terms." 

"  Nor  would  a  political  society  escape  from 
legal  despotism,  although  the  power  of  the  sov- 
ereign were  bounded  by  legal  restraints.  The 
power  of  the  superior  sovereign    immediately 


THE  LIMITS   OF  SOVEREIGNTY.  199 

imposing  the  restraints,  or  the  power  of  some 
other  sovereign  superior  to  that  superior,  would 
still  be  absolutely  free  from  the  fetters  of  posi- 
tive law.  For  unless  the  imagined  restraints 
were  ultimately  imposed  by  a  sovereign  not  in 
a  state  of  subjection  to  a  higher  or  superior  sov- 
ereign, a  series  of  sovereigns  ascending  to  in- 
finity would  govern  the  imagined  community. 
Which  is  impossible  and  absurd." 

This  argument  depends  for  its  force,  as  I 
have  said,  upon  the  proposition  that  all  law  is 
the  command  of  a  definite  political  superior, 
since  it  is  based  upon  the  assumption  that  legal 
restraints  can  be  imposed  only  by  means  of  such 
a  command.  Let  us  compare  this  passage  with 
the  one  already  quoted  from  Austin,  in  which 
he  tries  to  prove  that  customary  law  derives 
its  authority  from  a  command  of  the  sovereign. 
The  argument  there  used  is,  shortly,  as  fol- 
lows :  The  sovereign  has  power  to  abolish  the 
customary  law;  by  refraining  from  so  doing  he 
declares  his  pleasure  that  it  shall  continue  in 
force  ;  hence  it  owes  its  existence  to  an  ex- 
pression of  his  will,  and  may  properly  be  said 
to  result  from  his  command.  The  whole  of 
this  reasoning  rests  upon  the  premise  that  the 
sovereign  has  power  to  abolish  the  customary 
law,  and  the  truth  of  that  premise  might  be 
demonstrated  by  either  one  of  two  methods.     It 


200  JESS  ATS  ON  GOVERNMENT. 

might,  in  the  first  place,  be  proved  inductively; 
that  is,  by  examining  all  known  systems  of  law, 
and  showing  that  in  each  of  them  the  sovereign 
had  the  power  claimed  for  him,  —  a  result 
which  would  establish  a  probability  more  or 
less  strong  that  the  power  in  question  was  uni- 
versal. Such  an  examination,  however,  not 
only  fails  to  establish  the  premise  in  this  case, 
but  actually  disproves  it,  because,  as  has  been 
already  pointed  out,  there  are  known  systems 
of  law  in  which  the  sovereign  does  not  possess 
the  power  in  question.  The  premise  might,  on 
the  other  hand,  be  proved  deductively,  that  is, 
by  showing  that  it  followed  as  a  logical  conclu- 
sion from  some  other  premise  or  proposition 
admitted  to  be  sound.  Now,  the  proposition 
that  the  power  of  the  sovereign  can  have  no 
limits  will  appear  on  a  little  reflection  to  be 
the  only  one  available  for  this  purpose,  and,  in- 
asmuch as  Austin  makes  no  attempt  to  exam- 
ine all  known  systems  of  law,  it  would  seem  at 
first  sight  that  the  process  of  thought  in  his 
mind  involved  a  deductive  reasoning  from  that 
proposition  as  a  premise.  But  if  we  state  the 
proof  that  customary  law  is  the  command  of 
the  sovereign  in  this  form,  and  compare  it  with 
the  proof  that  sovereign  power  can  have  no 
limit,  we  shall  see  at  once  a  flaw  in  the  logic. 
These  arguments,  taken  together,  are  as  fol- 


THE  LIMITS   OF  SOVEREIGNTY.  201 

lows  :  The  power  of  the  sovereign  can  have  no 
limits ;  he  has,  therefore,  power  to  abolish  the 
customary  law  ;  hence,  all  law  is  the  command 
of  the  sovereign ;  and  from  this  it  follows  that 
his  power  can  have  no  limits.  The  reasoning 
in  a  circle  here  is  only  too  evident,  and  it  is 
impossible  that  a  man  of  Austin's  logical  acute- 
ness  should  have  been  guilty  of  so  palpable  an 
error.  The  fact  is  that  Austin  simply  assumed 
the  power  of  the  sovereign  to  abolish  customary 
law.  He  did  not  attempt  to  prove  it  deduc- 
tively, nor  did  he  make  an  examination  of  all 
known  systems  of  law,  but  his  attention  having 
been  directed  only  to  highly  developed  societies, 
he  thought  the  proposition  sufficiently  obvious 
to  be  accepted  without  question.  It  is  prob- 
able, however,  that  many  of  his  readers  have 
been  misled  into  supposing  the  proposition  es- 
tablished deductively,  and  that  they  have  un- 
consciously gone  through  in  their  own  minds 
the  reasoning  in  a  circle  already  described ; 
a  mistake  which  is  the  more  natural  because 
the  two  arguments  are  separated  in  Austin's 
book  by  two  hundred  pages,  and  one  of  them 
might  easily  be  forgotten  before  the  other  was 
reached. 

I  have  so  far  attacked  Austin's  demonstration 
that  the  power  of  the  sovereign  can  have  no 
limit,  by  trying  to  prove  his  premise  that  law  is 


202  ESSAYS   ON   GOVERNMENT. 

a  command  untrue  as  a  general  proposition,  and 
by  showing  that  the  process  by  which  that 
premise  is  often  supposed  to  be  established  in- 
volves a  reasoning  in  a  circle.  But  these  do 
not  exhaust  all  the  possible  objections  to  his 
position,  and  for  the  purpose  of  discussing  his 
arguments  further  I  shall  leave  out  of  sight  the 
criticisms  already  made,  and  suppose  the  propo- 
sition that  all  law  is  the  command  of  a  definite 
political  superior  to  have  been  satisfactorily 
proved.  From  this  it  follows  that  no  law  can 
exist  except  by  virtue  of  such  a  command  ;  but 
is  it  therefore  true  that  every  command  of  a 
political  superior,  or  of  the  ultimate  superior 
termed  the  sovereign,  is  a  law  ?  That  is  the 
point  which  Austin  seeks  to  prove  ;  because  if 
there  are,  or  may  be,  commands  of  this  sort 
which  are  not  laws  ;  if,  in  other  words,  the 
sovereign  is  for  any  reason  unable,  by  issuing 
a  command,  to  make  a  law  in  accordance  with 
his  will ;  then  his  legislative  power  is  limited 
by  just  the  extent  of  that  inability.  Starting 
with  the  proposition  which,  for  the  purpose  of 
this  part  of  the  discussion,  I  have  admitted, 
Austin  very  properly  draws  the  conclusion 
that  a  sovereign,  being,  by  definition,  subject 
to  no  political  superior,  cannot  be  bound  by 
any  commands  issued  by  such  a  superior,  and 
cannot,  therefore,  be  bound  by  any  laws,  or  be 


THE  LIMITS   OF  SOVEREIGNTY.  203 

subject  to  any  legal  restraints  whatever.  From 
this  it  is  clear  that  no  act  of  the  sovereign  can 
be  a  violation  of  any  legal  duty,  or  give  rise  to 
any  legal  claim  against  him,  or  render  him  lia- 
ble to  punishment.  It  is  clear,  in  short,  that 
he  can  do  no  legal  wrong.  It  is  also  clear  that 
no  law  can  declare  his  commands  invalid,  or 
deprive  them  of  any  legal  force  they  would 
otherwise  possess;  but  it  does  not  follow  that 
all  his  acts  are  valid  and  effectual,  or  that  all 
his  commands  are  laws.  These  are  two  very 
different  things,  and  the  former  by  no  means 
implies  the  latter,  but  may  very  well  exist 
without  it.  The  Queen  of  England,  although 
not  a  sovereign  in  the  sense  in  which  we  are 
using  the  word,  is  in  fact  free  from  legal  re- 
straint. She  can  do  no  legal  wrong.  She  can- 
not be  sued  or  prosecuted  for  any  act  which  she 
may  commit.  But  her  commands  are  not  laws, 
and  this  is  not  because  her  power  of  legislation 
is  restrained  by  the  orders  of  a  political  supe- 
rior, but  simply  because  she  possesses  no  legis- 
lative power  at  all.  Here,  then,  we  have  the 
case  of  a  member  of  a  political  society  enjoy- 
ing absolute  freedom  from  legal  restraint,  with- 
out any  corresponding  authority  to  make  laws. 
Let  us  take  another  illustration.  It  was  at 
one  time  asserted  by  the  English  judges  that 
Parliament  had  not  unlimited  power;   that  it 


204  ESS  ATS  ON  GOVERNMENT. 

could  not,  for  example,  make  a  man  a  judge  in 
his  own  case.1  Now,  suppose  that  this  doctrine 
had  prevailed,  and  that  both  the  judges  and  the 
community  at  large  had  been  universally  in  the 
habit  of  disregarding  statutes  which  conflicted 
with  the  principle  I  have  mentioned.  It  is 
evident  that  Parliament  in  such  a  case  would 
possess  only  a  limited  power  of  legislation,  and 
yet  would  be  bound  by  no  legal  duties,  and  sub- 
ject to  no  legal  restraints.  The  act  of  the  Par- 
liament in  passing  a  statute  of  this  kind  would 
not  involve  that  body  or  its  members  in  any  lia- 
bility to  punishment,  and,  according  to  Austin's 
own  definition,  its  act  would  not  be  a  breach  of 
any  duty  imposed  by  law,  because  no  legal 
duty  can  exist  without  a  sanction.  The  con- 
duct of  the  legislature,  in  other  words,  would 
not  be  illegal,  but  simply  ineffectual.  Parlia- 
ment, therefore,  would  be  subject  to  no  legal 
duty,  and  yet  would  possess  only  a  limited  au- 
thority. In  such  a  case  it  is  evident  not  only 
that  Parliament  would  be  guilty  of  no  breach 
of  a  legal  obligation,  but  also  that  the  valid- 
ity of  its  commands  would  not  in  any  way  be 
limited  by  the  command  of  a  political  superior. 
The  result  we  have  imagined  could,  of  course, 
be  produced  by  means  of  a  law,  set  by  a  polit- 
ical superior,  which  declared  the  objectionable 

1  See  page  170. 


THE  LIMITS  OF  SOVEREIGNTY.  205 

statutes  invalid  ;  but  Austin  makes  no  attempt 
to  prove  that  it  could  not  also  be  brought  about 
without  the  intervention  of  such  a  law,  and,  in 
the  case  supposed,  it  would  be  clear  that  neither 
the  judges,  nor  any  definite  political  superior, 
issued  commands  to  this  effect,  and  that  the 
statutes  were  not  disregarded,  on  the  ground 
that  they  conflicted  with  any  such  commands. 
To  assume  that  because  the  legislative  power  of 
the  sovereign  is  not  limited  by  law,  it  is  there- 
fore without  limit,  is  to  take  for  granted  one  of 
the  very  points  to  be  proved,  and  a  point,  more- 
over, which  is  far  from  self-evident.  It  is  like 
assuming  that,  because  the  soil  of  Great  Britain 
is  not  bounded  by  that  of  any  other  country,  it 
is  unlimited  in  extent. 

It  will  perhaps  occur  to  some  one  that,  if  all 
law  is  the  voluntary  command  of  the  sovereign 
and  the  expression  of  his  will  (a  proposition 
which,  for  the  purpose  of  this  part  of  the  discus- 
sion, I  have  admitted),  then  through  a  change 
of  that  will  any  part  of  the  law  may  cease  to 
operate,  and  any  right,  being  but  the  creature 
of  law,  may  be  taken  away.  It  may  seem,  in 
short,  that  the  sovereign,  merely  by  revoking 
his  own  commands,  can  bring  about  any  con- 
ceivable variation  in  that  vast  net- work  of 
rights  and  duties  which  forms  the  substance 
of  the  law.     But  this  is  not  the  case,  because, 


206  ESSAYS  ON  GOVERNMENT. 

although  it  is  true  that  a  volition  which  can  be 
exercised  only  in  one  way  is  no  volition  at  all, 
and  that  law  cannot  be  said  to  exist  by  the  will 
of  the  sovereign  if  he  has  no  real  option  in  the 
matter,  yet  it  is  equally  true  that  the  power  of 
willing  need  not  be  unlimited  in  order  that  an 
act  may  be  voluntary.  It  is  enough  that  there 
exists  a  choice,  although  that  choice  does  not 
extend  to  an  infinite  variety  of  objects.  In 
order  that  the  act  of  the  sovereign  in  making 
a  law  should  be  voluntary,  it  is  only  essential 
that  he  should  have  the  option  of  making  the 
law  or  not,  or  that  he  should  have  a  choice  be- 
tween two  or  more  possible  laws.  It  is  not  nec- 
essary that  he  should  be  able  to  establish  any 
conceivable  combination  of  rights  and  duties.' 
To  maintain  the  contrary  would  be  like  assert- 
ing that  my  motions  are  not  voluntary  because 
I  cannot  bend  my  joints  the  wrong  way,  or  that 
my  house  does  not  stand  during  my  pleasure, 
because  I  cannot  tear  down  the  lower  story  and 
leave  the  upper  ones  undisturbed.  Hence  it  is 
clear  that  even  if  all  law  is  based  upon  the  will 
of  the  sovereign,  there  may  be  combinations 
of  rules  which  he  cannot  make,  and  it  follows 
that  there  may  be  rights  which  he  cannot  take 
away ;  at  least  if  we  leave  out  of  account  his 
power  to  revoke  all  his  commands  at  once,  and 
introduce  a  general  state  of  anarchy,  —  an  act 


THE  LIMITS   OF  SOVEREIGNTY.  207 

which  would  be  virtually  equivalent  to  an  abdi- 
cation. 

Up  to  this  point  we  have  been  examining 
Austin's  proof  that  the  power  of  the  sovereign 
can  have  no  limit,  and  I  have  tried  to  show 
that  the  argument  is  based  upon  an  errone- 
ous premise,  and  that  even  if  the  premise  were 
sound  the  conclusion  would  not  follow.  Let  us 
now  study  his  definition  of  a  sovereign,  and 
see  what  inferences  can  be  drawn  from  it.  "  If 
a  determinate  human  superior,"  he  says  (Leet. 
VI.  p.  170,  2d  ed.),  "  not  in  a  habit  of  obedi- 
ence to  a  like  superior,  receive  habitual  obe- 
dience from  the  bulk  of  a  given  society,  that 
determinate  superior  is  sovereign  in  that  soci- 
ety, and  the  society  (including  the  superior)  is 
a  society  political  and  independent."  Suppose 
that  the  members  of  a  society  are  in  the  habit 
of  obeying  all  those  commands  issued  by  the 
sovereign  which  relate  to  a  certain  class  of  mat- 
ters, but  are  at  the  same  time  in  the  habit  of 
disobeying  all  his  commands  affecting  another 
class  of  matters.  Suppose,  for  example,  that 
they  are  in  the  habit  of  obeying  all  commands 
relating  to  secular  concerns,  while  in  the  habit 
of  disregarding  entirely  all  commands  touch- 
ing religion.  In  such  a  case  it  is  absurd  to  say 
that  there  is  no  government,  and  that  the  con- 
dition of  the  society  is  one  of  mere  anarchy; 


208  ESSAYS  ON  GOVERNMENT. 

but  it  is  also  impossible  to  hold  that  the  legis- 
lative power  of  the  sovereign  is  unlimited,  be- 
cause those  of  his  commands  which  are  disre- 
garded by  his  subjects,  and  which  he  has  no 
power  to  enforce,  amount  only  to  ineffectual  ex- 
pressions of  desire  on  his  part,  and  by  a  misuse 
of  terms  alone  can  be  called  laws,  or  be  snid  to 
be  included  within  the  limits  of  his  legislative 
power.  Sovereignty  depends  upon  the  habitual 
obedience  of  the  society,  and  it  is  hard  to  see 
how  it  can  extend  farther  than  the  habit  upon 
■which  it  rests.  If,  therefore,  the  society  is  not 
in  the  habit  of  obeying  commands  which  relate 
to  certain  matters,  the  sovereignty  of  the  person 
who  issues  them  does  not  cover  those  matters, 
and  the  commands  in  question  are  not  laws. 
The  case  we  have  supposed  is  extremely  un- 
likely to  occur,  because  a  sovereign  who  found 
that  a  certain  class  of  his  commands  were  ha- 
bitually disobeyed  would,  in  all  probability, 
either  desist  from  issuing  them,  or  attempt  to 
enforce  them,  and  thereby  provoke  a  conflict 
likely  to  result  in  his  success  or  his  overthrow. 
Let  us  take  a  less  improbable  case.  Let  us 
suppose  that  the  commands  of  a  sovereign 
which  concern  one  class  of  affairs  are  habitu- 
ally obeyed,  but  that  he  refrains  from  issuing 
any  commands  touching  another  class  of  affairs 
because  he  knows  that  they  would  certainly  be 


THE  LIMITS  OF  SOVEREIGNTY.  209 

disobeyed.  This  case  is  evidently  parallel  to 
the  last  one,  for,  so  long  as  the  habit  of  obe- 
dience does  not  extend  to  commands  dealing 
with  certain  matters,  it  can  make  no  difference 
whether  such  commands  are  issued  and  dis- 
obeyed, or  whether  they  are  not  issued  for  fear 
of  disobedience.  It  would  seem,  therefore,  that 
the  limit  of  sovereign  power  depends  upon  the 
limit  of  habitual  obedience ;  that  every  com- 
mand of  a  political  superior,  or  (if  we  reject  the 
proposition  that  all  laws  are  commands)  every 
rule  of  conduct,  which  is  obeyed  by  the  bulk  of 
a  given  society,  is  a  law,  provided  it  is  coupled 
with  a  sanction  appropriate  to  law  in  the  state 
of  civilization  which  that  society  has  reached  ; 
and  that,  conversely,  no  command  or  rule  of 
conduct  is  a  law  if  it  does  not  receive  the  obe- 
dience of  the  bulk  of  the  society.1 

This  test  can  readily  be  applied  to  existing 
enactments,  but  it  is  not  always  easy  to  proph- 
esy whether  a  command  of  a  new  and  unpre- 
cedented character  would  be  obeyed  or  not. 
Inasmuch,  however,  as  the  bulk  of  every  so- 
ciety, except  in  cases  of  severe  social  convul- 

1  It  may  be  supposed  that,  according  to  tins  principle,  the  stat- 
utes forbidding  the  sale  of  liquor  in  some  of  our  States  are  not 
laws,  but  that  would  be  going  too  far,  because  these  acts  are  by 
no  means  disregarded.  Persons  violating  them  may  perhaps  be 
rarely  prosecuted,  but  the  law  is  strictly  enforced  by  the  courts 
whenever  a  case  is  brought  before  them. 


210  ESSAYS    ON  GOVERNMENT. 

sion,  is,  from  one  motive  or  another,  in  the 
habit  of  obeying  what  it  regards  as  the  law, 
and  is  not  in  the  habit  of  obeying  rules  which 
it  does  not  consider  law  unless  they  are  agreea- 
ble, it  is  sufficiently  accurate  to  say  that  if  the 
bulk  of  a  society  consider  that  a  certain  com- 
mand, if  issued  by  the  sovereign,  would  not  be 
a  law,  and  if  they  are  not  disposed  to  obey  it, 
then  such  a  command  would  not  be  a  law,  and 
does  not  lie  within  the  legislative  power  of  the 
sovereign.  The  extent,  in  other  words,  of  sov- 
ereign power,  is  measured  by  the  habit,  the 
opinion,  and  the  disposition  of  the  bulk  of  the 
society. 

Bentham  appears  to  have  held  this  view  of 
the  limitation  of  sovereignty,  although,  from 
some  expressions  which  come  after  the  passage 
here  quoted,  it  is  doubtful  whether  he  distin- 
guished clearly  the  position  of  the  sovereign 
from  that  of  a  subordinate  legislative  body. 
The  following  extract  is  from  the  "  Fragment 
on  Government,"  Chapter  IV. :  — 

"  XXXIV.  Let  us  now  go  back  a  little.  In 
denying  the  existence  of  any  assignable  bounds 
to  the  supreme  power,  I  added,  '  unless  where 
limited  by  express  convention : '  for  this  excep- 
tion I  could  not  but  subjoin.  Our  author 
(Blackstone) ,  indeed,  in  that  passage  in  which, 
short  as  it  is,  he  is  most   explicit,  leaves,  we 


THE  LIMITS  OF  SOVEREIGNTY.  211 

may  observe,  no  room  for  it.  '  However  they 
began,'  says  be  (speaking  of  the  several  forms 
of  government)  —  '  however  they  began,  and 
by  what  right  soever  they  subsist,  there  is  and 
must  be  in  ALL  of  them  an  authority  that  is 
absolute.  .  .  .'  To  say  this,  however,  of  all 
governments  without  exception  ;  —  to  say  that 
no  assemblage  of  men  can  subsist  in  a  state  of 
government,  without  being  subject  to  some  one 
body  whose  authority  stands  unlimited  so  much 
as  by  convention  ;  —  to  say,  in  short,  that  not 
even  by  convention  can  any  limitation  be  made 
to  the  power  of  that  body  in  a  state  which  in 
other  respects  is  supreme,  would  be  saying,  I 
take  it,  rather  too  much  :  it  would  be  saying 
that  there  is  no  such  thing  as  government  in 
the  German  Empire ;  nor  in  the  Dutch  Prov- 
inces ;  nor  in  the  Swiss  Cantons ;  nor  was  of 
old  in  the  Achaean  League. 

"  XXXV.  In  this  mode  of  limitation  I  see 
not  what  there  is  that  need  surprise  us.  By 
what  is  it  that  any  degree  of  power  (meaning 
political  poiver^)  is  established?  It  is  neither 
more  nor  less,  as  we  have  already  had  occasion 
to  observe,  than  a  habit  of,  and  disposition  to, 
obedience  :  habit,  speaking  with  respect  to  past 
acts;  disposition,  with  respect  to  future.  This 
disposition  it  is  as  easy,  or  I  am  much  mis- 
taken, to  conceive  as  being  absent  with  regard 


212  ESSAYS  ON  GOVERNMENT. 

to  one  sort  of  acts,  as  present  with  regard  to 
another.  For  a  body,  then,  which  is  in  other 
respects  supreme,  to  be  conceived  as  being 
with  respect  to  a  certain  sort  of  acts  limited,  all 
that  is  necessary  is,  that  this  sort  of  acts  be  in 
its  description  distinguishable  from  every  other. 
"  XXXVI.  By  means  of  a  convention,  then, 
we  are  furnished  with  that  common  signal 
which,  in  other  cases,  we  despaired  of  finding. 
A  certain  act  is  in  the  instrument  of  conven- 
tion specified,  with  respect  to  which  the  gov- 
ernment is  therein  precluded  from  issuing  a 
law  to  a  certain  effect :  whether  to  the  effect  of 
commanding  the  act,  of  permitting  it,  or  of  for- 
bidding it.  A  law  is  issued  to  that  effect  not- 
withstanding. The  issuing,  then,  of  such  a  law 
(the  sense  of  it,  and  likewise  the  sense  of  that 
part  of  the  convention  which  provides  against 
it  being  supposed  clear)  is  a  fact  notorious  and 
visible  to  all :  in  the  issuing,  then,  of  such  a 
law,  we  have  a  fact  which  is  capable  of  being 
taken  for  that  common  signal  we  have  been 
speaking  of.  These  bounds  the  supreme  body 
in  question  has  marked  out  to  its  authority :  of 
such  a  demarcation,  then,  what  is  the  effect  ? 
Either  none  at  all,  or  this  :  that  the  disposition 
to  obedience  confines  itself  within  these  bounds. 
Beyond  them  the  disposition  is  stopped  from 
extending:    beyond   them    the   subject   is    no 


THE  LIMITS   OF  SOVEREIGNTY.  213 

more  prepared  to  obey  the  governing  body  of 
his  own  state,  than  that  of  any  other.  What 
difficulty,  I  say,  there  should  be  in  conceiving 
a  state  of  things  to  subsist  in  which  the  supreme 
authority  is  thus  limited,  —  what  greater  diffi- 
culty in  conceiving  it  with  this  limitation,  than 
without  any,  I  cannot  see.  The  two  states  are,  I 
must  confess,  to  me  alike  conceivable:  whether 
alike  expedient,  —  alike  conducive  to  the  hap- 
piness of  the  people,  is  another  question." 

It  is  worth  while  to  notice  here  a  difficulty 
which  Austin  encounters  when  he  tries  to  ex- 
plain the  position  of  a  person  who  is  at  the 
same  time  sovereign  in  one  independent  polit- 
ical society  and  subject  in  another.  "  Suppos- 
ing, for  example,"  he  says  (Lect.  VI.  p.  216, 
2d  ed.),  "  that  our  own  king  were  monarch 
and  autocrator  in  Hanover,  how  would  his  sub- 
jection to  the  sovereign  body  of  king,  lords,  and 
commons,  consist  with  his  sovereignty  in  his 
German  kingdom  ?  A  limb  or  member  of  a 
sovereign  body  would  seem  to  be  shorn,  by  its 
habitual  obedience  to  the  body,  of  the  habitual 
independence  which  must  needs  belong  to  it  as 
sovereign  in  a  foreign  community.  To  explain 
the  difficulty,  we  must  assume  that  the  char- 
acters of  sovereign,  and  member  of  the  sover- 
eign body,  are  practically  distinct:  that,  as 
monarch  (for  instance)  of  the  foreign  commu- 


214  ESSAYS   ON  GOVERNMENT. 

nity,  a  member  of  the  sovereign  body  neither 
habitually  obeys  it,  nor  is  habitually  obeyed  by 
it."  But  a  sovereign  possessed  of  strictly  un- 
limited power  can  issue  to  his  subject  any  com- 
mands he  may  please,  and  inflict  punishment 
in  case  of  disobedience.  The  sovereign  of  Eng- 
land, for  example,  may  command  his  subject, 
the  sovereign  of  Hanover,  under  pain  of  death, 
to  collect  taxes  in  his  German  dominions  and 
remit  them  to  England.  In  his  attempt  to 
avoid  this  conclusion  Austin  concedes  the  very 
point  at  issue,  and  seems  virtually  to  adopt  the 
theory  of  sovereignty  which  has  been  suggested 
in  the  preceding  pages ;  for,  by  distinguishing 
between  the  acts  which  the  king  of  Hanover 
performs  as  subject  of  England,  and  those 
whicli  he  perforins  as  sovereign  of  a  foreign 
country,  and  saying  that  the  legislative  power 
of  England  covers  only  the  former,  he  admits 
that  the  British  sovereign  may  have  power  to 
issue  commands  which  relate  to  one  class  of 
acts,  and  at  the  same  time  may  not  have  power 
to  issue  commands  which  relate  to  another. 
This  is  nothing  less  than  an  admission  that  the 
power  of  the  sovereign  is  not  always  unlim- 
ited. He  declares,  moreover,  that  the  question 
whether  the  legislative  power  of  England  ex- 
tends to  the  acts  of  its  subject  performed  as 
sovereign   of   Hanover   is   determined   by   the 


THE  LIMITS   OF  SOVEREIGNTY.  215 

habitual  obedience  of  the  subject  in  that  capac- 
ity. He  considers,  therefore,  that  in  this  case 
at  least,  the  extent  of  the  sovereign's  power  is 
measured  by  the  habitual  obedience  of  the  sub- 
ject. The  same  or  a  similar  difficulty  is  in- 
volved in  Austin's  statement  (Lect.  VI.  p.  323, 
2d  ed.),  that  a  person  may  be  at  the  same  time 
completely  a  member  of  one  independent  polit- 
ical society,  and  for  certain  limited  purposes  a 
member  of  another ;  but  he  makes  no  attempt 
to  solve  it. 

If  the  extent  of  sovereign  power  is  measured 
by  the  disposition  to  obedience  on  the  part  of 
the  bulk  of  the  society,  it  may  be  said  that  the 
power  of  no  sovereign  can  be  strictly  unlimited, 
because  commands  can  be  imagined  which  no 
society  would  be  disposed  to  obey.  This  may 
very  well  be  true,  and  perhaps  it  would  be 
proper  to  classify  sovereigns,  not  according  as 
their  authority  is  absolute  or  not,  but  according 
as  it  is  indefinite,  or  restrained  within  bounds 
more  or  less  definitely  fixed  ;  for  unless  the 
limits  of  power  are  tolerably  well  determined, 
they  tend  to  stretch  farther  and  farther.  Defi- 
nite limits  may  be  set  to  sovereign  power  in 
either  one  of  two  ways :  they  may  result  from 
the  rivalry  of  two  independent  rulers,  who 
settle  by  negotiation  questions  concerning  the 
boundaries  of  their  respective  jurisdictions,  and 


216  ESSAYS  ON  GOVERNMENT. 

quarrel  when  they  cannot  agree  ;  or  they  may 
be  established  by  some  formal  declaration, 
which  by  sufficient  precision  enables  the  bulk 
of  the  society  to  have  a  general  opinion  about 
the  extent  of  legislative  authority,  and  to  dis- 
tinguish between  those  commands  which  fall 
within  the  boundaries  prescribed  and  those 
which  do  not. 

Let  us  consider  the  first  of  these  cases.  If 
the  sovereign's  power  to  make  laws  can  be 
limited  to  a  certain  class  of  affairs,  it  is  clear 
that  other  matters  not  within  these  limits  may 
form  the  sphere  of  action  of  another  sovereign, 
and  thus  two  sovereigns  may  issue  commands 
to  the  same  subjects,  each  being  supreme  in 
his  own  department.  It  may  not  be  always 
easy  in  such  cases  to  define  accurately  the 
boundaries  of  each  ruler's  authority  ;  but  this 
difficulty,  which  arises  from  the  impossibility 
of  an  exact  classification  of  all  human  actions, 
is  constantly  met  with  in  applying  the  law,  and 
does  not  affect  the  proposition  that  two  sov- 
ereigns with  different  spheres  of  activity  may 
govern  the  same  subjects.  The  relation  of 
the  Church  to  the  various  temporal  rulers  in 
Europe  has  been,  at  times,  of  the  character  here 
described. 

The  possibility  of  what  I  may  call  a  dual 
sovereignty  in  one  political  society  suggests  an 


THE  LIMITS  OF  SOVEREIGNTY.  217 

inquiry  into  the  connection  between  the  terms 
"  sovereign  "  and  "  nation."  The  former  is  the 
name  given  to  an  independent  political  superior, 
considered  in  relation  to  his  subjects.  The 
latter  is  applied  to  the  society  composed  of  the 
superior  and  the  subjects,  considered  in  rela- 
tion to  other  independent  political  societies. 
Now  it  is  often  assumed  that  these  two  concep- 
tions are  insepai'able ;  that  every  nation  must 
have  one  and  only  one  sovereign,  and  that  every 
sovereign  together  with  his  subjects,  must  con- 
stitute a  nation :  but  I  think  that  this  is  a  mis- 
take, because,  if  as  I  have  urged  there  can 
exist  within  the  same  territory  two  sovereigns, 
issuing  commands  to  the  same  subjects  touch- 
ing different  matters,  it  may  very  well  happen 
that  one  of  them  has  no  relations  with  other  in- 
dependent political  societies.  It  may  happen 
that  the  authority  of  a  sovereign,  in  respect  to 
the  matters  within  his  competence,  extends  over 
several  communities,  each  of  which  is  subject 
in  other  matters  to  an  independent  political 
superior  of  its  own,  while  all  the  relations  with 
foreign  powers  fall  within  the  competence  of 
the  central  government ;  and  in  this  case  the 
lesser  political  bodies,  although  strictly  sover- 
eign, could  not  properly  be  called  nations.  I 
do  not  assert  that  this  is  true  of  the  United 
States,  but  merely  that  there  is  nothing  illog- 


218  ESSAYS   ON  GOVERNMENT. 

ical  or  impossible  in  such  a  state  of  things, 
because  the  proposition  that  a  nation  can  have 
only  one  sovereign,  and  that  every  sovereign 
together  with  his  subjects  must  constitute  a 
nation,  depends  upon  the  hypothesis  that  the 
authority  of  a  sovereign  is  necessarily  unlimited, 
and  with  that  hypothesis  it  must  stand  or  fall. 

The  second  method  in  which  the  limits  of 
sovereign  power  may  be  definitely  fixed  is,  by 
means  of  a  declaration,  sufficiently  precise  to 
enable  the  members  of  the  society  to  distin- 
guish between  those  commands  which  fall 
within  the  authority  of  the  sovereign  and 
those  which  do  not.  Such  a  declaration  can 
be  made  in  various  ways,  and  in  order  that  it 
may  have  the  effect  proposed,  it  is  only  neces- 
sary that  the  bulk  of  the  community  should 
consider  all  commands  issued  in  excess  of  the 
authority  set  forth  invalid,  and  should  not  be 
disposed  to  obey  them.  It  can  be  made  by 
means  of  a  convention  or  compact,  as  Bentham 
suggests;  or  without  any  compact,  by  the  sov- 
ereign himself ;  by  an  assembly  of  citizens 
when  changing  the  form  of  government ;  or 
by  several  independent  communities  when  unit- 
ing to  create  a  new  nation.  It  is,  in  fact,  con- 
ceivable that  it  might  be  made  without  any 
written  instrument  at  all,  by  a  process  of  grad- 
ual evolution,  although  such  a  state  of  things 


THE  LIMITS  OF  SOVEREIGNTY.  219 

is  not  very  likely  to  occur,  and  probably  would 
not  be  permanent.  Provided  the  result  I  have 
described  is  reached,  the  method  of  attaining  it 
is  quite  immaterial- 
Several  different  theories  about  the  political 
institutions  of  the  United  States  have  been  put 
forward  from  time  to  time,  but  I  shall  refer  to 
them  only  for  the  sake  of  suggesting  the  bear- 
ing which  the  foregoing  discussion  may  have 
upon  them.  If  Austin's  doctrines  concerning 
the  nature  of  sovereignty  and  of  law  be  ac- 
cepted, only  two  views  of  the  government  of 
this  country  can  be  entertained.  Of  these,  one 
has  been  rendered  famous  by  the  advocates 
of  extreme  States'  rights,  who  considered  the 
State  completely  sovereign,  and  maintained 
that  without  its  own  consent  (a  consent  revoc- 
able, moreover,  at  any  time)  neither  the  State 
nor  its  citizens  could  be  bound  by  any  com- 
mand of  the  central  government.  The  other  is 
the  extreme  national  theory,  which  treats  the 
authority  of  the  States  as  entirely  dependent 
upon  the  pleasure  of  the  national  sovereign, 
meaning,  of  course,  by  this  term,  not  Congress, 
but  the  States  in  union,  the  American  people, 
or  whoever  else  the  sovereign  of  the  nation  may 
be.  If  the  first  of  these  views  is  adopted  the 
Constitution  must  be  looked  upon  as  a  treaty 
revocable  bv  any  party  thereto  ;  if  the  second, 


220  ESSAYS  ON  GOVERNMENT. 

it  is  a  command  issued  by  the  national  sover- 
eign, which  can  be  changed  at  will  by  him. 
But  if,  on  the  other  hand,  we  reject  Austin's 
theory,  we  are  at  liberty  to  consider  the  Con- 
stitution neither  a  treaty  nor  a  command,  nor 
even  a  law  at  all,  but  a  declaration  of  the  limi- 
tations of  various  sovereign  powers,  which  can- 
not legally  be  changed  except  in  the  manner 
provided  in  the  instrument  itself.  The  recent 
discussion  in  Rhode  Island,  of  the  question 
whether  the  constitution  of  a  State  can  legally 
be  amended,  except  in  the  manner  prescribed 
therein,  turns  in  part  upon  the  same  principles; 
because  if  Austin's  theory  is  sound,  a  constitu- 
tion is  a  law  set  by  the  sovereign,  who  is,  in 
the  case  we  are  considering,  the  electoral  body 
of  the  State ;  and  it  follows  that  this  body  must 
have  power  to  revoke  or  alter  its  own  com- 
mands. But  if  Austin's  theory  is  wrong,  it  is 
possible  that  there  may  exist  in  the  State  no 
legislative  or  sovereign  power  whatever,  except 
such  as  is  described  in  the  constitution  ;  and 
if  so,  neither  the  voters  nor  any  other  body  of 
persons  can  have  any  legal  authority  to  make 
changes  in  the  government,  except  in  accord- 
ance with  the  provisions  of  that  instrument. 

It  may  be  worth  while,  in  this  connection,  to 
remark  that  whether,  like  Austin,  we  consider 
a  constitution  a  law  set  by  an  absolute  sover- 


THE  LIMITS  OF  SOVEREIGNTY.  221 

eign,  or  whether  we  regard  it  as  a  law  made 
without  the  command  of  a  political  superior,  or 
even  as  no  law  at  all,  but  simply  as  a  declara- 
tion of  the  existing  limits  of  sovereign  power, 
the  effect  of  an  unconstitutional  statute  is  in 
each  case  the  same;  because  if  a  constitution, 
whatever  its  origin,  is  a  law  of  superior  author- 
ity, every  inferior  law  inconsistent  with  it  must 
be  void;  and  if  without  being  a  law,  it  is  the 
measure  of  legislative  power,  a  statute  which 
exceeds  the  limits  prescribed  is  destitute  of 
legal  authority,  and  is  equally  invalid.  On 
this  point,  indeed,  and  in  regard  to  the  func- 
tions of  courts  in  dealing  with  such  laws,  all 
these  theories  are  exactly  in  accord. 

In  attacking  the  doctrines  concerning  sov- 
ereignty and  law  taught  by  the  analytical  ju- 
rists, I  have  in  reality  only  been  trying  to  carry 
out  their  own  principles.  Before  their  day  it 
was  customary  to  seek  a  foundation  for  sov- 
ereignty in  some  antecedent  right  to  rule,  such 
as  a  divine  commission  or  an  original  compact; 
and  the  great  change  in  the  theory  of  govern- 
ment which  Bentham  and  Austin  introduced 
consisted  in  their  assertion,  that  sovereignty 
was  not  a  question  of  right,  but  of  fact ;  that 
the  sovereign  was  not  the  person  who  had  a 
right  to  rule,  but  the  person  who  did,  in  fact, 
receive  obedience.     The  argument  in  the  fore- 


222  ESSAYS  ON  GOVERNMENT. 

going  pages  is  an  attempt  to  extend  this  princi- 
ple, and  to  show  that  the  existence  of  any  law 
is  a  question  of  fact.  A  command  or  rule  of 
conduct,  according  to  this  view,  becomes  a  law, 
not  because  it  ought  to  be  such,  or  because  it 
proceeds  from  a  person  in  other  respects  sov- 
ereign, but  only  in  case  it  is  really  obeyed  ;  and 
in  the  same  way  the  extent  of  sovereign  power 
being,  like  the  very  existence  of  sovereignty,  a 
pure  matter  of  fact,  depends  entirely  upon  the 
extent  of  the  obedience  actually  rendered. 


INDEX. 


American  Government. 

Defects  of  the  system,  58. 

Principles  of,  examined,  87  et  seq. 
Austin,  John. 

Theory  of  sovereignty  in  his  "Jurisprudence,"  190  et  seq. 
Australia. 

Power  of  the  second  chamber  in,  59  note. 

Bentham,  Jeremy. 

His  views  on  the  limits  of  sovereignty,  210. 
Bill  of  Rights. 

Why  annexed  to  the  Federal  Constitution,  83. 
Bryce,  James. 

His  views  on  State  Interference  in  England  and  America, 
108. 

Cabinet. 

Meaning  of  its  responsibility  in  a  parliamentary  system,  24. 
Cabinet  Officers. 

If  responsible  to  Congress,  would  control  the  President,  27. 

Effect  of  giving  them  seats  in  Congress  without  votes,  5. 
Canada. 

Federal  government  of,  59  note. 
Centralization. 

Tendency  to  in  the  United  States,  48. 

Effect  of  a  parliamentary  system  upon,  36. 
Chamber  of  Deputies. 

In  France,  condition  of,  34. 

Congress. 

With  a  responsible  cabinet,  would  control  the  executive,  28. 


224  INDEX. 

Represents  the  people  only  to  a  limited  extent,  44-5. 

Variations  in  the  power  of,  52. 
Constitution. 

Statute  violating  it,  why  void,  40. 

Basis  of  its  power,  42,  128. 

Must  be  sharply  distinguished  from  other  laws,  105. 

Can  protect  private  rights  only  partially,  106. 

Whether  a  law  set  by  a  sovereign,  219. 
Constitution,  British. 

Puts  no  restraint  on  parliament  or  people,  81. 
Constitution  of  Massachusetts. 

Social  Compact  in,  166. 

French  influence  in,  167. 
Constitution  of  the  United  States. 

Fetish  worship  of,  in  the  past,  126. 
Constitutional  Law. 

Need  of  careful  study  of,  129. 
Contract. 

The  means  of  calculating  on  the  future  conduct  of  men,  14. 
Cooperation. 

Voluntary  and  forced,.  17. 
Courts. 

Position  of,  in  the  United  States,  103,  119. 

Power  of,  in  the  United  States,  40,  119. 
Has  not  diminished,  56. 

Would  vanish  if  the  Cabinet  were  responsible  to  Con- 
gress, 40. 
Popular  basis  of,  104,  127. 

Effect  on  the  other  departments  of  decisions  by,  120. 

In  what  sense  they  represent  the  people  on  constitutional 
questions,  105,  124  et  seq. 

In  England,  once  claimed  a  right  to  disregard  Acts  of  Par- 
liament, 170. 

Demagogues. 

In  England  and  in  America,  107. 
Democracy.    See  also,  Majority. 

Its  relation  to  private  rights,  60  et  seq. 

Compared  with  absolute  monarchy,  66. 

Under  a  parliamentary  system,  74  et  seq. 


INDEX.  225 

Pure  and  representative,  76. 

In  France,  79. 
Departments  of  Government. 

In  the  United  States. 

Changes  in  the  respective  powers  of,  52. 
Judicial  department  the  final  arbiter  on  constitutional 
questions,  119. 
Dissolution. 

Power  of,  necessary  in  a  parliamentary  system,  34. 
Division  of  Power. 

Importance  of,  91. 

Two  sorts  of,  in  the  United  States,  93. 

How  made  effective,  97  et  seq. 
Due  Process  of  Law. 

Meaning  of,  85. 

England. 

Parliamentary  system  in,  75. 
Decay  of  conservatism  in,  80. 
Enterprise. 

Encouragement  of,  10  et  seq. 

Requires  an  absence  of  restraints  on  individuals,  10. 

Requires  a  prospect  of  wealth,  12. 

Requires  a  possibility  of  forecasting  the  future,  13. 

France. 

Democracy  in,  79. 

Germans. 

Their  tendency  to  confuse  morality  and  law,  171. 
Germany. 

Power  of  the  Emperor  of,  30. 

Hamilton,  Alexander. 

His  remark  on  the  need  of  a  Bill  of  Rights,  83. 
Hobbes,  Thomas. 

Treats  of  the  Social  Compact  in  the  "Leviathan,"  143  et 

seq. 
Hooker,  Richard. 

Treats  of   the  Social  Compact  in  his  "Ecclesiastical  Pol- 
ity," i:57. 


226  INDEX. 

House  of  Lords. 

Its  present  position,  32. 

Initiative.    See  Switzerland. 

Judiciary.    See  Courts, 

Kant,  Emmanuel. 

Treats  of  the  Social  Compact,  174. 

Laissez  Faire.    See  Paternal  Government. 
Land  Acts. 

Recently  passed  in  England,  111. 
Law. 

Austin's  definition  of,  examined  and  criticised,  194. 
Lawyers. 

In  America,  their  relation  to  constitutional  law,  134. 
Liberty.    See  also,  Private  Rights. 

Two  meanings  of,  62. 

Its  relation  to  Democracy,  62  et  seq. 
Locke,  John. 

Treats  of  the  Social  Compact,  150. 

Magna  Charta. 

Meaning  of  the  famous  clause  in,  85. 

Misunderstood  by  American  statesmen,  86. 
Maine,  Sir  Henry. 

His  views  on  the  Swiss  "  Referendum,"  76. 
Majority. 

In  a  parliamentary  system,  74  et  seq. 

Power  of,  restrained  in  the  United  States,  83  et  seq. 

Self-control  by,  how  aided,  89  et  seq. 
Mayflower. 

Social  Compact  made  on  the,  140. 
Ministry.    See  Cabinet. 

Natural  Rights. 

Doctrine  of,  exploded,  193. 


INDEX.  227 

Parliament. 

Represents  the  people,  44,  75. 

No  restraint  on  the  power  of,  44,  81. 
Parliamentary  Government. 

Nature  of,  24,  75. 
Paternal  Government. 
'     Nature  of,  61. 

Enervating1  effect  of,  15  et  seq. 

Increase  of,  and  its  cause,  68  et  seq. 

Parliamentary  system  appropriate  to,  74. 

American  system  not  appropriate  to,  83  et  seq. 

Extent  of,  in  the  United  States,  106. 

Extent  of,  in  England,  109. 
People. 

Parliament  represents  the,  45,  75. 

Congress  represents,  only  to  a  limited  extent,  44-5. 
Political  Institutions. 

Effect  of,  often  exaggerated,  72. 
Political  System. 

Actual  working  of,  must  be  studied,  1. 

Is  an  organism,  3. 
Popular  Will. 

Development  of,  hindered  in  the  American  system,  91. 

How  far  executed  by  the  courts,  96,  105,  124  et  seq. 
President. 

Of  the  United  States. 

Effect  of  a  responsible  ministry  on,  25  et  seq. 
Variations  in  the  power  of,  52. 
Source  of  his  power,  98. 

Of  the  French  Republic. 

Position  of  President  Thiers,  26. 
Private  Rights.    See  also,  Liberty. 

Reasons  for  protecting,  8  et  seq. 

Relation  of,  to  Democracy,  60  et  seq. 

Causes  of  violations  of,  63. 

A  constitution  can  only  partially  protect,  106. 
Public  Officers. 

Effect  of  having  many  in  New  England  towns,  102. 

Subject  to  ordinary  law  in  the  United  States,  120. 

But  not  in  France,  121. 


228  INDEX. 

Referendum.    See  Switzerland. 
Responsible  Ministry.    See  Cabinet. 
Rousseau,  Jean  Jacques. 

On  the  Social  Compact,  157  et  seq. 

Self-Control. 

On  the  part  of  the  majority,  how  aided,  89. 

By  not  giving  absolute  power  to  any  organized  body, 

90. 
By  creating  several  independent  political  bodies,  96. 
By  a  tribunal  which  determines  the  limits  of  powers, 
101. 
Senate. 

Effect  of  responsible  ministry  on,  31. 

Source  of  its  power,  99. 

In  France,  position  of,  33. 
Social  Compact. 

Origin  of  the  theory  of  a,  136,  139. 

Hooker's  treatment  of  the,  137. 

Grotius'  treatment  of  the,  142. 

Hobbes'  treatment  of  the,  143. 

Locke's  treatment  of  the,  150. 

Rousseau's  treatment  of  the,  157. 

Kant's  treatment  of  the,  174. 

Made  on  the  Mayflower,  140. 

An  excuse  for  getting  rid  of  James  II.,  149. 

No  reference  to,  in  the  French  constitutions,  165. 

Contained  in  the  Constitution  of  Massachusetts,  166. 

American  judges  influenced  by  the  theory,  169. 

Why  the  theory  was  monopolized  by  democratic  writers, 
147. 

Causes  of  its  decay  in  England  and  revival  in  France,  156. 

Causes  of  the  rise  of  the  theory,  183. 

Causes  of  its  fall,  186. 
Socialism.    See  Paternal  Government. 
Society. 

Must  be  based  on  human  nature,  18. 
Sovereignty. 

Limit  of. 

Two  doctrines  in  regard  to,  61 ,  189. 


INDEX.  229 

Hobbes'  view  of,  146,  172. 
Locke's  view  of,  153,  172. 
Rousseau's  view  of,  160,  172. 
Kant's  view  of,  177  et  seq. 
Austin's  view  of,  198. 

Examined  and  criticised,  199  et  seq.,  213. 
Bentham's  view  of,  210. 
Practical  bearing  of  the  question,  191. 
Depends  on  the  limit  of  habitual  obedience,  207. 
And  on  the  opinion  and  disposition  of  the  subjects,  209. 
Question  one  of  fact  and  not  of  law,  221. 
How  limits  may  be  established,  215  et  seq. 
Bearing  of  the  question  on  the  Constitution,  219. 
Connection  of  the  terms  "  Sovereign  "  and  "  Nation,"  217. 
Spencer,  Herbert. 

His  explanation  of  the  growth  of  socialism,  69. 
State  Interference.  See  Paternal  Government. 
States. 

Effect  of  a  responsible  ministry  on  the,  36. 
Causes  of  their  power,  100. 
Switzerland. 

"  Referendum"  in,  76. 
"  Initiative  "  in,  78. 
Parties  in,  78. 

Theort. 

True  meaning  of,  129. 

Wilson,  Woodrow. 

His  views  on  the  Government  of  the  United  States,  46. 
Advocates  a  responsible  ministry,  48. 


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